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ROWORTH, GREAT NEW STREET, FETTER LANE. 5 (J^ PREFACE TO THE SECOND EDITION. A Second Edition of this Book lia\dng been called for, we have carefully re^d8ed the whole work, and included the Law of Distress Amendment Act, 1888, which contains imi^ortant alterations with regard to bailiffs and appraisements, and adopts sects. 50 and 52 of the Agricultui'al Holdings (England) Act, 1883, making these sections now apply to an// holdings, and not, as previously, to holdings under the Act. It also confers a new exemption from distress upon wearing apparel, bedding, and tools of trade to the value of £5, following the provisions of sect. 96 of the County Courts Act, 1846, with regard to executions. The fact also that the County Courts Act, 1888, and the Rules drawn pursuant thereto, have con- solidated and amended all pre^dous County Court Acts and Rules, has necessitated considerable re- vision in the Chapter on Replevin. All decisions reported since the last edition have been noted down to the date of jDublication. AETHUE OLDHAM. A. La TEOBE FOSTER. 1, Paper Buildings, Temple. February, 1889. a2 PREFACE TO THE FIRST EDITION. It is more than forty years since Mr. Biillen's Treatise on the Law of Distress was presented to the public. This of itself w^ould be sufficient to justify the Authors in attcm})ting to supply a w^ant that must have been felt by the profession, in spite of the valuable assistance afforded by the recent editions of Woodfall's Landlord and Tenant. They have, therefore, by collecting the cases and statutes bearing on the subject, endeavoured to produce a w^ork which they hope w411 be of service. At the same time it has been their wish to make as interesting as possible w4iat would otherwise be somewhat dry and technical. The first two Chapters are devoted to the Origin and Progress of Rent, from the earliest days to the present time. The different classes of persons who are entitled to distrain are then discussed. This includes distress in case of mort- gages, bankruptcy, and the winding up of com- panies — a branch of law wdiich is of comparatively modem growth. After stating at length the ^^roper method of distraining, the Authors give in full detail the VI PREFACE TO THE FIRST EDITION. exemptions conferred on certain persons and goods, and the remedies provided for T\i'ongful, irregular, and excessive distresses. Next follows a distinct branch of the subject, the law of distress relating to damage feasant and replevin. The last Chapter has been devoted to the summary methods provided by the Legislature for the recovery of poor and highway rates, and the enforcement of the orders and convictions of justices. In this book every decision on the subject since 1780 has, as far as possible, been cited, as well as all material cases prior to that date. References have been given to all the reports, and all statutes bearing on distress have also been referred to, especially the Lodgers' Goods Protection Act, 1871, the Conveyancing and Law of Property Act, 1881, and the Agricultm'al Holdings (England) Act, 1883. AETHUE OLDHAM, 3, Haecoxtet Buildings, Teitple. A. La TEOBE FOSTEE, 3, De. Johnson's Buildings, Temple. January, 1886. CONTENTS. Part I. OF A DISTRESS FOR RENT. CHAPTER I. Of E.ENTS IN RELATION TO A DISTRESS. PAOE S'ECT. 1.-^0/ Jients ffenerafli/ 1—6 Origin of rent 1, 2 Definition of rent 2 Essentials of a rent . . 2—6 Sect. II. — Of the several kinds of He/it .. 6—20 Rent service 6—14 origin of . . 6 essentials of 7—11 to whom and how it must be rcserred . . .. 11—14 improper reservations 12, 13 effect of Conveyancing Act, 1881, s. 4 i 14 Rent-charge 14—16 Rent-seek 16 Fee farm rent 16, 17 Rents of assize . . 17 Chief rents ..17 Quit rents 17 Copyhold rents .. 17 Rents pay able in advance .. 17—19 Rents distrainable of common right 19,20 Effect of the 4 Geo. II. c. 28, s. 5 20 Distress now incident to eveiy species of rent . . 20 Seisin of rent 20 VIU CONTENTS. CHAPTER II. Of the Appoetioxmext of Eent. (a) Apportionment of rent in respect of estate . . as regards rent -service eflEect of Conveyancing Act, 1881, s. 10 as regards a rent -charge (b) Apportionment of rent in respect of time Apportionment Act, 1870 .. PAGE 21—26 21 — 24 23, 24 24—26 26—28 26—28 CnAPTEE III. Who may Distrain. (a) Actual demise at a fixed rent .. 29—40 weekly tenancies . . 32, 33 tenancies on sufferance 33 the rent must be certain 33—35 postponement of right of distress 36 acknowledgment of antecedent tenancy . . 36 suiTender .. 36,37 eNdction 37,38 notice to quit . . . . 38, 39 custom of the country . . 39 mistake .. 39,40 (b) Reversioners 40—45 severance of reversion . . .. 40,41 assignment of reversion 41,42 surrender .. 43—45 (c) Coparceners 45-47 after partition .. 45,46 tortious acts of coparceners 46,47 unity of seisin 47 (d) Coheii-s in gavelkind . . ..47 (e) Joint tenants ,. 47—50 severance of their estate 48,49 demise by joint tenants .. 49, 50 (f) Tenants in common 50,61 in case of replevin 50 leases between ..51 allotments under the Inclosm-e Acts 51 (g) Tenants in fee simple 51,52 (h) Tenants in tail . . 52 CONTENTS. IX (i) Tenants for life effect of 32 Hen. VIII. c. 37, s. 4 effect of 8 Anne, c. 14, 8. 6 (j) Tenants by the curtesy (k) Tenants in dower and freebench lands taken in lieu of dower (1) Tenants under execution in case of rent-charge . . in case of rent-service tenants by elegit (m) Heirs (n) Executors and administrators effect of 32 Hen. VIII. c. 37, s. 1 effect of 3 & 4 WiU. IV. c. 42, s. 37 rights of executors and administrators inter se. time when an executor must distrain time when an administi'ator must distrain (o) Devisees and legatees (p) Ti"ustees (q) Lords of manors and commoners right to distrain by escheat . . . . commoners' right to distrain inter se suspension of a right of common (r) Annuitants distinction between an annuity and a rent -charge (s) Grantees of rent- charges . . distress by assignee of a rent-charge . . effect of Conveyancing Act, 1881, sect. 44, sub-ss. 1, 2 (t) Owners of tithes Tithe Commutation Acts provisions in case of Quakers smnmary remedy in respect of lamnxas lands and commons gross (u) Guardians (v) Committees of hmatics (w) Husbands and wives . . effect of 32 Hen. VIII. e. 37, s. 3 effect of 3 & 4 Will. IV. c. 42, s. 37 . . effect of the Married "Women's Property Act, 1882 (x) Receivers and agents . . private receivers receivers appointed by the Court agents PAGE 52, 63 63 63 64 54, 55 54 , , 55 55 , , 65 65 56, 57 57- -61 57, 58 58 59 60, 61 61 61 61- -63 63 63- -66 63, 64 64, 65 65, 66 66, 67 66, 67 68- -70 68, 69 70 70- -76 70- -76 73 in 74, 75 76, 77 77, 78 78—82 79, 80 80, 81 81, 82 CONTENTS. (y) Coi'porations . . . . coi'porations sole corporations aggregate parish officers . . (z) Sequestrators PAGE 82—86 82-84 84—86 86 .. 86 CHAPTER IV. Who may Distrain ix the case of Mortgages, Bankrtjptcy, A]ST) THE Winding up of Companies. (a) Mortgages . . . . . . . . . . . . 87 — 93 (1) Where a lease has been made before the date of the mortgage deed . . . . . . . . . . . . 89, 90 effect of Judicature Act, 1873, sect. 25, sub-sect. 5 . . 90 (2) Where a lease has been made after the date of the mortgage deed (b) Banki-uptcy . . . . . . . . . . . . 93—103 Bankruptcy Act, 1883 . . . . . . . . . . 93, 94 Bills of Sale Act, 1878, sect. 6 .. .. .. ..100 (c) Companies .. .. .. .. .. . .J03 — 113 The Companies Act, 1862 .. .. .. .. 104—106 91—93 CHAPTER V. What may or may not be Distrained. (1) Persons exempted from distress (a) Persons holding by title paramoimt (b) Copyholders (c) Joint tenants . . (d) Strangers . . (e) Under-tenants . . effect of the 4 Geo. II. c. 28, s. (f) The Crown (g) Ambassadors effect of the 7 Anne, c. 12, s. 3 (h) Distress on possession limited by statute ..lu- -118 lls, 116 116 116 116 116, 117 .. 116, 117 117, 118 118 118 Lite 118 CONTENTS. XI (2) Goods privileged from distress . . I. Things absolutely privileged . . (1) Things annexed to the freehold fixtures growing crops PAGE 119—163 ,119—146 119—125 .120—123 123—125 (2) Goods delivered to a person in the way of his trade. . 125 — 137 meaning of " public trade " .. .. 125 — 127 cattle on their way to a fair . . . . . . 127, 128 meaning of things " to be carried or wrought " 128 — 131 meaning of things delivered "to be managed " . . 131 — 133 factors and auctioneers .. .. .. 133 — 136 pawnbrokers . . . . . , . . . . 136 goods at an inn .. .. .. .. 136, 137 (3) Cocks and sheaves of corn, and things which cannot be restored in same plight. , .. .. 137 — 139 effect of 2 "Will. & Mary, sess. 1, c. 5, s. 3 . . 138, 139 effect of 4 Geo. II. c. 28, s. 5 . . . . 138, 139 (4) Things iu actual use . . , . . . . . 139 — 141 (5) Animalsferce natiira .. ,. ,, ..141 (6) Thmgs in the custody of the law . . .. ..141 — 146 effect of the 8 Anne, c. 14, s. 1 . . . . . . 142 effect of the 14 & 15 Vict. c. 25, s. 2 . . . . . . 143 effect of the 56 Geo. III. c. 50 . . . , 144, 145 effect of the Agricultural Holdings (England) Act, 1883 .. .. .. .. .... 145 (7) Wearing apparel, bedding, and tools of trade to value of 5/. .. .. .. .. .. 145, 146 II. Things conditionally privileged .. .. ..146 — 151 (1) Beasts of the plough and iostruments of husbandry 146 — 150 effect of the 51 Hen. III. stat. 4 . . . . 146, 147 effect of the Agricultural Holdings (England) Act, 1883 147—150 (2) Instruments of a man's trade or profession ., 150, 151 III. Things privileged by statute . . .. .. ..151 — 163 (1) Kail way rolling stock .. .. .. 151 — 154 effect of the Eailway RoUing Stock Protection Act, 1872 .. .. .. .. ..151—154 (2) Frames, &c., used in woollen manufactories . . 154, 155 effect of the 6 & 7 Vict. c. 40 . . . . . . 154, 155 (3) Gasworks Clauses Act . . . . . . 155, 156 (4) Lodgers' goods . . . , . . , . 156 — 162 effect of the Lodgers' Goods Protection Act, 1871 . . 156 — 158 definition of a " lodger ". . .. ,. 153 — 162 (5) Law of Distress Amendment Act, 1888 ,. .. 102, 163 wearing apparel, bedding, &c. . . . . . . 163 sect. 96 of County Courts Act, 1846 . . . . . , 163 Xll CONTENTS. CHAPTEE YI. Or THE Proceedings in a Distress for Rent. I. (a) When rent is due when in arrear demand of rent difference between distress and re-entry as to demand (b) Rent payable in advance. . by custom rent payable on a condition precedent (c) The amount of rent for which a distress may be made distress must not be made for more rent than is due "where different properties are included in same lease where the rent consists of several amounts where rent is entire (d) Deductions from rent when a tenant may make deductions. effect of the Agricultural Holdings (England) Act, 188 (e) Double rent effect of the 11 Geo. II. c. 19, s. 18 (f) Effect of the Statutes of Limitations 3 & 4 Will. IV. c. 27, 8. 42 38 & 39 Vict. c. 57, s. 1 Agricultural Holdings (England) Act, 1883 (g) Demand of rent previous to a distress power of distress after demand . . when a demand is necessary II. (a) Distress, when to be made as to time meaning of sunrise and sunset (b) Distress after expiration of tenancy effect of the 8 Aune, c. 14, ss. 6 and 7 custom of the country . . effect of the 14 & 15 Vict. c. 25, s. 1 . . (c) Waiver of forfeiture waiver by distress . . (d) Waiver of notice to quit . . waiver of disclaimer (e) Ejectment effect of the Common Law Procedure Act, 1852 meaning of ' ' no sufficient distress ' ' III. (a) Where the distress may be made effect of the Statute of Marlbridge distress on the highway exception in case of the Crown . . cattle on a common 174- 177, PAGE 164—168 164 164—166 .. 164 168—171 168, 169 .. 170 171—174 .. 171 .. 171 .. 172 172 -177 175 177 178 .. 177 178—181 178, 179 .. 178 180, 181 181 — 184 182 182 184 184 185—188 185 186 186 188, 189 189 190 190 -192 190 191 192—196 193 195 195 195 190- 194, CONTENTS. XIU III. (b) Fraudulent removal effect of the 8 Anne, c. 14, s. 2 effect of the 11 Geo. II. c. 19 . as to the removal . . in case of bankruptcy of a lessee . distresses in the metropolitan police district treble damages (c) Remedies in case of fraudulent removal effect of the 11 Geo. II. c. 19 . . forfeiture of double value ■where goods under 50^. . . rV. (a) Distress how made . . liability of a landlord for his bailiff's acts effect of the Law of Distress Amendment Act, 1888 liability of landlord for bailiff's acts distinction between illegal and irregular acts . . theft by bailiff bailiffs must be certified by whom certificate granted rules as to certificates special certificate . . general certificate security forfeiture of security . . fees for certificates and secxxrities (b) Warrant of distress . . effect of warrant (c) Indemnity to broker . . where broker takes goods privileged from distress (d) Entry .. instances of legal and illegal entry (e) Re-entry in case of abandonment (f ) Seizure . . constructive seizure hire-purchase system . . (g) Inventory . . notice of distress parol notice what the notice should state want of notice . . (h) Impounding at common law effect of 2 Will. & Mary, c. 5 different kinds of pounds PAGE 196—202 . 196 . 196 ,198—200 . 200 . 201 ,. 202 .202—207 ., 202 .202—204 202, 203 .207—265 207—209 ..207, 209—214 208, 209 .. 209 .. 209 .210—214 .. 211 212, 213 .. 212 .. 212 212, 213 .. 213 .. 213 .214—216 .. 215 ,216—218 .. 217 218—221 ,219—221 221—224 .. 222 224—226 .. 225 ., 226 .226—229 .. 227 .. 227 228, 229 228, 229 229—242 .. 229 .. 230 230, 231 XIV CONTENTS. rV. (h) Impounding — continued. effect of 12 & 13 Vict. c. 92, s. 5 as to the pound keeper . . entry into pound . . effect of 17 & 18 Vict. c. 60 recovery of compensation for food provided power of sale theft from a pound escape from a pound abuse of the distress ■where the distress may be impounded effect of the Statute of Marlbridge effect of 1 & 2 PhU. & Mary, c. 12, s. 1 impounding on the premises under the 11 Geo. II s. 10 what is an impounding removal of goods to public auction room assent to impounding . . what is a sufficient impovmdiug what must be impounded on the premises. . (i) Appraisement effect of 2 Will. & Mary, sess. 1, c. 5, s. 2 appraisers need not be sworn effect of the Law of Distress Amendment Act, 1888 stamp on appraisement . . penalties . . number of appraisers required . . appraisers must be competent view and valuation (j) Sale effect of 2 WiU. & Mary, sess. 1, c. 5 how the five days are to be reckoned . . effect of Law of Distress Amendment Act, 1888 consent by tenant for goods to remain on the premises search in County Court for replevins landlord may not buy . . meaning of " best price " . . no order need be observed in the sale (k) Expenses of the distress where the costs are under 20/. . . schedule of expenses under the Law of Distress Amend ment Act, 1888 remedies uuder hi Geo. III. c. 93 where the costs are over 20/. effect of the Law of Distress Amendment Act, 1888 copy of charges expenses of impounding PAGE .. 231 231, 232 .. 232 232, 233 .. 233 .. 233 .. 234 .. 235 .. 235 236—239 .. 236 236, 237 .19, 238 239 239 239 240 241 242—248 242, 243 243 244 245 245 246 247 248 256 .. 249 251, 252 249, 250 .. 253 .. 254 .. 254 .. 254 .. 255 256—262 257—259 .. 257 257, 258 259—261 ,259, 260 .. 261 .. 262 248- CONTENTS. XV (1) Surplus proceeds . . meaning of " surplus " return of surplus PAGE 262—265 . .. 263 .. 264 CHAPTEE VII. Satisfaction of Arrears of Rent by the Execution Creditor. EflPect of the 8 Anne, c. 14 one year's reut may be claimed exception in favour of the Crown weekly tenancies construction of the statute persons who come under the statute to what tlie Act applies forehand rents . . landlord may claim one year's rent as to executors and administrators notice to the sheriff . . notice to execution creditor poundage measure of damages 43 Geo. III. c. 99, s. 37 Taxes Management Act, 1880 Execution under County Court process the County Courts Act, 1888, s. 160 Execution under admiralty process 266- -280 266 267 267 267 267 268 268- -271 271 271- -273 273 274, 275 275 . . 276 276 276, 277 277 278, 279 278, 279 279, 280 CHAPTER VIII. By what Means the Right of Distress may be taken away. Where no actual demise at a fixed rent By determination of the lessor's interest Where lessor parts with his reversion Merger of the reversion By the non-performance of a condition precedent (a) By agreement not to distrain acceptance of single instead of double rent condition precedent (b) EflPect of an agreement for interest on rent 281 . . 282 . . 282 . . . . 282 282 ..283 284 . • 284 . . 284 284 XVI CONTENTS. (c) Effect of taking a Fecurity for the rent promissoiy notes . . bills of exchange (d) Second distress (1) In case of insufficiency efPect of 17 Car. II. c. 7, s. 4 . . abandonment of the first distress mistake in the value of the goods withdrawal of the distress (2) In case of replevin of the same goods (e) By payment of the rent in arrear (f) By tender of the rent in arrear tender without expenses to whom it may be made . . tender before impounding tender after impounding . . what is an impounding (g) Restraining a distress by injunction effect of the Judicature Act, 1875 PAGE . . 285, 286 .. 285 . . 285, 286 286—291 ..286—290 .. 287 .. .. 288 288, 289 .. 289, 290 290, 291 .. ..291 .. 291 ..291—295 291, 292 . . 292, 293 .. 293 .. 293, 294 294, 295 . . 295, 296 .. 295 CHAPTEE IX. Of a Distress of Things Damage Feasant. Definition of damage feasant . . . . . . . . .... 297 Applies to inanimate things . . . . . . . . . . 297 Distinction between distress for rent and damage feasant . . . . 298 Who may distrain .. .. .. .. .. 298—301 commoners . . . . . . . . . . . . 298 — 300 agistment of cattle by the lord , , . . . . , . 299 colour of right . . . . . . . . .... 299 agreement between commoners as to right of distress . .299, 300 concurrent possession of land to take profits of special nature . . . . 300 cattle carried to a public fair . . . . . . . . 300, 301 By whom distress damage feasant may be made. . . . 301, 302, 307 no exemption except of things in actual use . . . . 301, 302 As to trespassing cattle . , . . . . . . . . 302, 303 time when cattle should be removed . . . . . . 303, 304 defects in fences . . . . . . . . . . . . 304, 305 second distress of cattle . . . . . . . . . . 306 Remedies .. .. .. .. .. .. 306,309,310 As to the pound.. .. .. .. .. .. 307—309 abuse of the distress . . . . . . . . . . 307, 308 Tender .. .. .. .. .. .. .. ..308 CONTENTS. xvu Part II. REMEDIES FOR WRONGFUL DISTRESS. CHAPTEE X. Of Rescue and Pound Bkeach. Definitions of re.scue and pound breach Rescue in law and in deed actual force not necessary . . Rescue before impounding by whom it may be made Abandonment of the distress . . Abuse of the distress Remedies for unlawful rescue or pound breach who is entitled to the remedy exception in case of the Crown effect of 2 Will. & Mary, sess. 1, c. 5 treble damages effect of 6 & 7 Vict. c. 30 . . release of cattle from the pound damage to the pound . . penalty ousting of justices' jurisdiction . . PAGE 311, 312 312 312, 313 313, 314 .. 3U 314 314, 315 315—319 315, 316 315 .. 316 316, 317 317—319 318 .. 318 318, 319 .. 319 CHAPTEE XL Eemedies for Wrongful Distress. Wrongful distress form of action damages recoverable where distress is void ab initio distress taken in the highway effect of Statute of Marlbridge recoveiy of double value under 2 Will. & Maiy, sess. 1 what is a taking waiver of right of action form, of indorsement of writ . . . . statement of claim . . evidence summary remedy iu the Metropolitan Police Distiict o. ..320- -326 . . • . 320 321 321, 322 ., 322 323 1, c. 5, s. 5 323 . . 323 324 324, 325 325 325 .. 325 326 XVlll CONTENTS. PAGE Irregular distress 326—334 effect of 11 Geo. II. c. 19, 8. 19 , . ..326—328 recovery of special damage ..327 costs 327 does not apply to damage feasant ..327 nor where distress void ab initio .. 327, 328 mere irregularity ..328 form of action . . 328, 329 nominal damages ..329 instances of irregularity ..329—332 sale after notice of replevin 329, 330 severance of fixtures 330 goods sold without appraisement ..330 neglect to give copy of costs 331 effect of 11 Geo. II. c. 19, s. 21 332,333 Excessive distress ..334—341 at common law ..334 what is excessive 335 where distress wrongful as well as excessive . . ..336 what property in the goods must be shown .. 336, 337 special property ..337 what must be proved . . .. 339, 340 express malice ..339 damages .. 339, 340 as to auctioneers . . 340, 341 joint actions . . 341 CHAPTEE XII. Proceedings in Eepletin. Definitions of replevin Writ of capias in withernam To what replevin extends When replevin lies . . Time for making a replevin in distress damage feasant extension of time under the Law of Distress Amendment Act, What may be replevied By whom replevin may be had joint tenants and tenants in conunon married women executors and administrators 342, 344 343, 367, 368 344, 345 .. 345, 346 346, 347 347 t, 1888.. 347 348 348, 349 349 349 . , 349 CONTENTS. XIX Against whom replevin may be had brokers . . corporations County Courts Act, 1888, as to sheriff's jurisdiction Action of replevin in the High Court time for commenoing- indorsement of the writ damages defences avowry and cognizance payment into Court . . discontinuance of action . . non-suit execution writ '^de retorno habendo'''' Action of replevin in the County Court County Court Rules, 1889 as to security . , as to the bond certiorari meaning of prosecution ' ' with effect and without delay deposit in lieu of bond county court fees evidence for plaintiff evidence for defendant judgment costs new trial appeal wi'it of recaption writ of second deliverance liability of sureties right to begin sheriff's jurisdiction proceedings on the replevin bond and return irreplevisable PAGE .. 349, 350 350 350 . . 350, 351 351, 364 ct seq. 364 364 .. 365, 367 366 366 366 366 •• 366, 367 367 367, 368 351 et seq. —356, 360 , 362, 363 352- -354, 370 ..354 , 355, 370 352 , 369, 370 lay" 343, 351, 357- -359 • • 355, 370 356, 357 361 361, 362 362- -364, 373 363 363 364 370, 371 371, 372 .. 372, 373 373 350, 351 372 62 XX CONTENTS. Part III. DISTRESS FOR POOR AND HIGHWAY RATES, &c. CHAPTEE XIII. Sect. I. — Distress for Poor and Highway Rates, and Taxes Powers of distress and sale Power of committal . . Powers of succeeding overseers I. As to the poor rate what the rate must show evidence of the rate demand of the rate complaint summons . . service of . . proof of warrant of distress when justices are bound to issue the warrant invalid warrants . . to whom it should be directed mandamus costs . . broker's charges commitment in default of distress warrant of commitment order for imprisonment removal of goods to avoid a distress tender of rate and costs appeal and stay of proceedings . . where the rate is quashed . . where the goods may be levied . . II. As to the highway rate recovery of costs how the warrant is to be directed payment or tender of rate appeal III. Taxes . . The Taxes Management Act, 1880 distress by collector breaking open houses . . levy committal 376, PAGE 374—398 374 .. 374 374, 375 376—393 376 .. 376 377 377 378 378 378 379 et seq. 379, 383 379—382 382 383—385 385, 386 .. 386 386 .. 386 386, 387 .. 387 388 388—393 389 391, 392 393, 394 393, 394 393 .. 394 394 395—398 395—398 . . ^395 395 395, 396 397, 398 CONTENTS. XXI Sect. II. — Distret,s for the enforcement of Orders and Justices Wariant of distress for recovery of penalty Power to postpone the issue of a warrant Costs Ct)iamittal to prison When the warrant is returnable How the warrant should be backed Execution of the warrant Requisites of the warrant Liability of constables Where there is not sufficient distress Return of " nulla bond'' Protection to justices The order for the warrant Sale of the distress Wrong-ful retainer of produce. . Payment or tender Execution of warrant of English Court in Scotland, Court iu Ensrland PAOK Convictions of ..398-413 398, 399 .. 399, 400 400, 401, 409, 412 401, 402, 406, 409 402,403 403 ..403 404 ..405 405 ..406 407 408, 409 411 411,412 412 and of Scotch 412,413 APPENDICES A. B. C. D. (Forms) 415—475 INDEX .. 477—536 TABLE OF CASES CITED. PAGB Abbey v. Petcli, 8 M. & W. 419; 10 L. J. Ex. 455 - 145, 255 Absalom v. King, Bull. N. P. 181 - - - - - 285 Acocks V. Phillips, 5 H. & N. 183 - - - - 165 Adams v. Grane, 1 C. & M. 380 ; 2 L. J. Ex. 105 ; 3 Tyr. 326 - 135 Alcliorne v. Gomme, 2 Bing. 54; 9 Moo. 130 - - - 91 Aldenburgh v. Peaple, 6 C. & P. 212 - - - - 184 Alford V. Yickery, 1 Car. & M. 280 - - - 33, 38, 190 Allan V. Backhouse, 2 Ves. & Beam. 74 - - - - 62 Allen v. FUcker, 10 Ad. & EU. 640 ; 9 L. J. Q. B. 42 - - 246 Allen V. Overseers of Liverpool, L. E. 9 Q. B. 180 ; 43 L. J. M. C. 69 - - - - - - - - 159 Allen V. Sharp, 2 Exch. 352 - - - - - 344 Alwayes v. Broome, 2 Lutw. 1262 - - - - 312, 315 Ambergate Bail. Co. v. Midland Bail. Co., 2 Ell. & Bl. 793 ; 23 L. J. Q. B. 17 - - - - - - 234, 297 Anderson r. Midland Bail. Co., 3 E. & E. 614 ; 7 Jur. N. S. 411 ; 30 L. J. Q. B. 94 ; 3 L. T. N. S. 809 - - 30, 88, Andi'ew v. Hancock, 1B.&B.37 AndreTvs v. Dixon, 3 B. & Aid. 645 - - - - Andrews r. Eussell, Bull. N. P. 81 Angfell V. Harrison, 17 L. J. Q. B. 25 ; 12 Jur. 114 - AngeU V. Eandall, 16 L. T. N. S. 489 - Angustien v. Challis, 1 Exch. 279 - - - - Ankerstein v. Clarke, 4 T. E. 617 - - - . Anscombe v. Shore, 1 Taunt. 261 ; 1 Camp. 285 Appleton V. DoUy, Yelv. 135 ; BuU. N. P. 57 - Arnett v. Garnett, 3 B. & A. 440 - Arnison, Ex parte. (See Heysham v. Heskett.) Arnold v. Poole, 4 M. & G. 860 ; 2 Dowl. N= S. 574 Arnsby v. Woodward, 6 B. & C. 519 - Arundel v. Trevill, Sid. 80 - - - - Ashmore i\ Hardy, 7 C. & P. 501 - - - - 198, 271 176, 285 - 274 - 247 - 198 - 18 275, 276 - 77 308, 337 - 63 269, 275 _ 84 - 116 - 349 - 198 PAGE 146; 7L. T. -185, 22L , 322 _ 84 =!60; 59L.T. - 83, 118, , 267 Wms. 306 - 84 _ _ 355 127, 301 _ _ 335 - 359 _ _ 159 XXIV TABLE OF CASES CITED. Attack V. Bramwell, 3 B. & S. 520 ; 32 L. J. Q. B. N. S. 740 _ - - - - Att.-Gen. v. Donaldson, 10 M. & W. 117 - Att.-Gen. v. Leonard, 38 Ch. Div. 622 ; 57 L. J. Cli. N. S. 624; 37 W. E. 24 Att.-Gen. v. Mayor of Coventry, 2 Yern. 713 ; IP. Austen v. Haward, 7 Taunt. 327 Austin V. "^Tiitred, Willes, 623, n. (a), 628 Avenall v. Croker, Moo. & Malk. 172 Axford V. Perrett, 5 Bing. 586 - - - Ayshford, In re. Ex parte Lovering, 35 W. E. 652 B. Bacli i^. Meats, 5 M. & S. 200 - - - -199,201,204 Badkin v. Powell, Cowp. 478 . _ _ _ 235, 236 Bagge V. Mawby, 8 Excli. 641 ; 22 L. J. Ex. 230 - 102, 172, 288, 289 Bagshawe v. Goward, Cro. Jac. 148 - - - - 235, 307 Bail V. Mellor, 19 L. J. Ex. 279 - - - - - 341 Bailey v. Badham, 30 Ch. Div. 84; 53 L. T. N. S. 13; 1 T. L. E. 548 -------- 72 Bailey v. Mason, 2 Ir. C. L. E. 582 - - - - 189 Baker f. Leathes, Wightwick, 113 - - - - - 300 Bannister v. Hyde, 2 E. & E. 627 ; 29 L. J. Q. B. 141 ; 1 L. T. N. S. 438 - - - - - - - 222 Barnes v. Lucas, Ey. & Moo. 264 - - - - - 355 Barnes v. White, 14 L. J. M. C. 65 - - - - 408 Barons v. Luscombe, 3 Ad. & Ell. 589 - - - - 400 Barshaw v. Bullock, 2 P. & D. 241 - - - - 269 Barton v. Eock, 22 Beav. 81 - - - - - - 80 Barwick v. Poster, Cro. Jac. 227, 233, 310 ; Yelv. 167 - - 168 Baster v. Carew, 3 B. & 0. 649 ; 5 D. & Ey. 558 - - - 205 Bateman v. Farnsworth, 29 L. J. Ex. 365 - _ _ 276 Bates V. Duke of Beaufort, 8 Jur. N. S. 270 - - - - 120 Baylis v. Fisher, 7 Bing. 153 ; 4 M. & P. 790 - - - 323 Bayly v. Murin, 1 Vent. 245 - - - - - - 168 Bayly v. Went, 51 L. T. N. S. 764 - - - 81, 296 Baynes v. Smith, 1 Esp. 207 - - - - - - 140 Beard v. Knight, 8 E. & B. 865 ; 27 L. J. Q. B. 358 - 142, 279 Beavan v. Delahay, 1 H. Bl. 5 - - - 39, 53, 186, 194 Beck V. Denbigh, 29 L. J. C. P. 273 ; 2 L. T. N. S. 154 ; 6 Jur. N. S. 998 ; 8 W. E. 392 - - - - - 123 Bedell v. Constable, Vaughan, 179 - - - - - 76 TABLE OF CASES CITED. XXV PAGE Bedford v. Sutton Coldfield, 3 C. B. N. S. 449 ; 27 L. J. C. P. 105 ; 4 Jnr. N. S. 133 - - - - - - 76 Begbie v. Crook, 4 L. J. C. P. 264 - - - - - 63 Begbie v. Hayne, 2 Bing. N. C. 124 ; 2 Scott, 193 - - 207 Bellasis v. Buibridge, 1 Lutw. 214- - - --138 Bendloss v. Phillips, Cro. Eliz. 895 - - - - 56 Bendyshe v. Pearce, 4 Moore, 99 ; 1 B. & B. 460 - - _ 75 Bennett v. Bayes, 5 H. & N. 391 ; 29 L. J. Ex. 391 ; 2 L. T. N. S. 156 - - - - - - - - 292 Bennett v. Eobins, 5 C. & P. 379 - - - - 80 Bennett's Case, Stra. 787 - - - - - - 268 Bony u, Huckstable, 14 Jur. 718 - _ - . 317 Bessell v. Wilson, 1 E. & B. 489 - - - - - 408 Best V. Drake, 11 Hare, 369 - - - . _ 295 Betts V. Gibbins, 2 Ad. & Ell. 57 ; 4 L. J. K. B. 1 - - - 217 Bevils' Case, 4 Co. Pep. lib; 9 Co. Pep. 23b - - - 314 Bew, Ee, Ex parte Bull, 18 Q. B. D. 642 ; 56 L. T. N. S. 571 - 181 Bible V. Hussey, 2 Ir. 0. L. E. 308 ; 16 W. P. 710 - 269, 275 Biddle v. Bond, 6 B. & S. 225 - - - - - 341 Biggins V. Goude, 2 Cr, & Jer. 364 ; 1 L. J. Ex. 129 ; 2 Tyr. 447 - 246, 330 Bi'gnell v. Clarke, 5 H. & N. 485 ; 29 L. J. Ex. 267 ; 2 L. T. N. S. 189 -----__. 234 Binstead ?;. Buck, 2 W. Bl. 1117- - - - - 141 Bircb V. Wright, 1 T. E. 380- - - - - - 172 Bird V. Higginson, 6 Ad. & E. 824 - - - - 85 Birmingham Gas Co., Ee Adams, L. E. 11 Eq. 204; 24 L. T. N. S. 42 - - - - - - - _ 95 Birmingham Gas Co., Ee Fansha-we, L. R. 11 Eq. 615 ; 40 L. J. Bktcy. 52 ; 19 W. E. 603 ; 24 L. T. N. S. 639 - 95, 100 Bishop V. Bryan, 6 0. & P. 484 - - - 246, 248, 255 Bishop of Bristol's Case, 3 Leon. 113 - - - - 55 Bissett V. Caldwell, 1 Peake, 50 - - - - - 140 Blachford v. Cole, 5 C. B. N. S. 514 - - - - 41 Blackey v. Dinsdale, Cowp. 661 - - - - - 200 Blades v. Arundale, IM. &S. 711 - - - 143, 268 Bland v. Inman, Cro. Car. 288 - - - _ _ 55 Bliss V. Collings, 5 B. & A. 876 - - - - - 23 Blunden's Case, Cro. Eliz. 56 - - - - - 167 Blyth V. Dennett, 13 C. B. 178 - - - - - 190 Bolton V. Canham, Pollexf. 120 - - - --114 Bonaker v. Evans, 16 Q. B. 162 - - - - - 86 Boraston v. Green, 16 East, 81 - - - - - 186 Boulton V. Eeynolds, 2 El. & E. 369 ; 29 L. J. Q. B. 11 ; 1 L. T. N. S. 166 - - - - - - - 292 XXVI TABLE OF CASES CITED. PAGE Bowen V. Evans, 3Ex. HI - - - - - - 368 Bowles V. Poore, Cro. Jac. 282 - - - - - 77 Boyd V. Profaze, 16 L. T. N. S. 431 - - - - - 222 Boyle V. Tamlyn, 6 B. & C. 329 - - - - - 305 Brackenbury v. Pell, 12 East, 587 - - - - - 358 Bradbury v. Wrigbt, 2 Doug. 628 - - -15, 17, 20, 52 Bradley, Ex parte, 1 Dea. & Chit. 223 - - - - 101 Bradyll v. BaU, 1 Bro. C. C. 427 94 Braithwaite v. Cooksey, 1 II. Bl. 465- - - 53, 60, 114, 187 Branding v. Kent, 1 T. E. 62 ; Cowp. 476 - - 235, 332 Brandon v. Brandon, 5 Mad. 473 - - - - - 80 Branscombe v. Bridges, 2 Dowl. & Eyl. 256 ; 1 B. & C. 145 ; 3 Stark. 171 - - - - - -291, 292, 336 Branscombe v. Scarborough, 6 Q. B. 13 - - - - 372 Branston v. Eobins, 4 Bing. 11 ; 12 Moore, 68 - - 40, 284 Brennan v. Hood, 4 Ir. C. L. E. Q. B. 332 - - - - 51 Bridges v. Smyth, 5 Bing. 410 ; 2 M. & P. 470 - - 38, 189 Bridgwater Engineering Co., Ee, L. E. 12 Ch. D. 181 ; 48 L. J. Ch. 389 - - - - - - 93, 105, 106, 109 Briggs V. Sowry, 8 M. & W. 729 - - - - 103, 143 Brocklehurst v. Lawe, 7 Ell. & Bl. 176 ; 26 L. J. Q. B. 107- - 96 Bromley v. Holder, 1 M. & M. 175 - - - - 205 Brooke v. Noakes, 8 B. & C. 537 ; 2 Man. & Ey. 570 - - 204 Brown v. Arundel, 10 C. B. 54 ; 20 L. J. C. P. 30 ; 16 L. T. N. S. 126 - - - - - - - - 135 Brown, Bailey and Dixon, In re, L. E. 18 Ch. D. 649 - 108, 109 Brown v. Glenn, 16 Q. B. 254 ; 20 L. J. Q. B. 205 - - 219 Brown v. Hutchinson, 31 L. J. M. C. 229 - - - - 379 Brown v. Metropolitan Life Assurance Society, 4 H. & N. 428; 1 E. & E. 832 ; 28 L. J. Q. B. 236 - - - 40, 68, 92 Brown r. Owen, 11 Q. B. 130 - - - - - 295 Brown v. Powell, 4 Bing. 230 ; 12 Moore, 454 - - 293, 309 Brown v. Shevill, 2 A. & E. 138 - - - - - 126 Brown v. Storey, 1 M. & G. 117 ; 1 Scott, N. C. 91 - - 91 Browne v. Dunnery, Hob. 208 - - - - 181, 182 Browne v. Mattire, Cas. temp. Hardw. 119 - - - 349 Brownhall v. Norton, Sir T. Jones, 193 - - - - 300 Browning v. Dann, Bull. N. P. 81 - - - - 218 Buckley v. Kenyon, 10 East, 139 - - - - - 3 Buckley v. Taylor, 2 T. E. 600 - - - - 94, 168 Bull, Ex parte, Ee Bew, 18 Q. B. D. 642 ; 56 L. T. N. S. 571 - 181 Bull V. Gibbs, 8 T. E. 327 116 Bull V. Parker, 2 Dowl. N. S. 345 - - - - - 295 TABLE OF CASES CITED. XXVU PAGE Buller's Case, 1 Leon. 50- - - - - 226, 229 Bunch v. Kennington, 1 Q. B. 679 - - - 139,141,302 Burne v. Eichardson, 4 Taunt. 720 - - - 36, 43, 188 Burrell v. Jones, 3 B. & A. 47 - - - - - 102 Burt V. Moore, 5 T. R. 329 - - - - 298, 299 Buszard v. Capel, 8 B. & C. 144 ; 3 You. & Jer. 344 ; 2 Man. & EyI. 197 ; 6 Bing. 150 ; 3 Moore & P. 480 ; 12 Moore, 339 ; 2 C. & P. 541 - - - - - - - 193 Butcher v. Butcher, 7 B. & C. 399 - - - - 300 Butler and Baker's Case, 3 Co. Eep. 22 b- - - 45, 46 Butt's Case, 7 Co. Eep. 23 - - - - - 3, 41 Buttery v. Eobmson, 3 Bing. 392 - - - - 67, 68 C. Cadogan v. Kennett, Cowp. 432 - - - - - 22 Cakeleigh v. Birch, 3 Camp. 521 (n.) - - - - 275 Calvert v. Jolly, 2 B. & Ad. 418 - - - - - 269 Camberwell Eent Charge, In re, 4 Q. B. 151 ; 12 L. J. Q. B. 155 72 Campbell v. Leach, Amb. 740 - - - - - 3 Campbell's (Sir Thos.) Case, Eoll. Abr. tit. " Exon." (B. ) - - 55 Cape V. Scott, L. E. 9 Q. B. 269 ; 43 L. J. Q. B. 65 ; 30 L. T. N. S. 87 - - - - - - 65, 299 Carey v. Mathews, 1 Salk. 191 - - - 85, 214, 350 Carnelley, Ex parte, Li re Lancashire Cotton Spinning Co., 35 Ch. B. 656; 56 L. J. Ch. 761 ; 57 L. T. N. S. 511 ; 36 W. E. 305 ----- - -104, 110, 113 Carpenter v. Parker, 3 C. B. N. S. 237 ; 27 L. J. C. P. 78 - - 91 Carr v. Lambert, L. E. 1 Ex. 168 - - - - 66 Carriage Co-operative Supply Association, In re, Clemence, Ex parte, L. E. 23 Ch. D. 154 ; 48 L. T. N. S. 308 - - - 112 Carter v. Carter, 5 Bing. 406; 2 M. & P. 723 - - 175, 176, 337 Carter v. Dean of Ely, 7 Sim. 211, 217 - - - - 85 Carter, Ex parte, Ee Ware, L. E. 8 Ch. D. 731 ; 39 L. T. N. S. 185; 27 W. E. 106 - - - - - - 94 Carter v. Salmon, 43 L. T. N. S. 490 - - 11, 90, 295 Cartwright v. Smith, 1 Moo. & Eob. 284- - - - 201 Castleman v. Hicks, 1 C. & M. 266 - - - - - 240 Cattley u. Arnold, 7 W. E. 245; 28 L. J. Ch. 352; Johns. & Hem. 651 - - - - - - - - 26 Cawthorne v. Camp, 1 Aust. 212- - - --346 Chamberlayn's Case, 1 Leon. 220; Owen, 124; Noy, 119 - 235 Chandler v. Doulton, 3 H. «& C. 553 ; 34 L. J. Ex. 89 - - 340 XX^^U TABLE OF CASES CITED. PAGE Chapman v. Beecham, 3 Q. B. 723 ; 12 L. J. Q. B. 42 - 66, 92 Chapman v. Bluck, 4 Bing. N. C. 187; 7 L. J. C. P. 100 - -10, 32 Charleton v. Alway, 11 Ad. & Ell. 993 ; 9 L. J. Q. B. 237 - 75 Chetham v. Williamson, 4 East, 469- - - - - 12 Child r. Chamberlain, 3 N. & M. 520; 5 B. & Ad. 1049 ; 6 C. & P. 213 - - - - - 207, 247, 259, 262, 332 Church V. Imperial Gas Co., 6 Ad. & Ell. 861 - - - 86 Churchill r. Evans, 1 Taunt. 529- - - - - 300 Churchwardens of Birmingham v. Shaw, 10 Q. B. 868 - - 379 Clark V. Calvert, 8 Taunt. 472 - - - - - 124 Clark V. Gaskarth, 8 Taunt. 431 - - - - - 124 Clarke v. Davies, 7 Taunt. 72 - - - - - 349 Clarke v. Holford, 2 C. & K. 540 - - 18, 123, 169, 247, 331 Clarke v. Milwall Dock Co., 17 Q. B. D. 494 ; 53 L. T. N. S. 316 ; 54 L. T. N. S. 814 ; 55 L. J. Q. B. 378 ; 34 W. E. 698 ; 51 J. P. 5; 2 T. L. E. 669 - - - - - 131 Clarke v. Water ton, 8 C. & P. 365 ; 2 M. & Eob. 87 - - 44 Clemence, Ex parte. In re Carriage Co-operative Supply Asso- ciation, L. E. 23 Ch. D. 154 ; 48 L. T. N. S. 308 - - 103 Clement v. Milner, 3 Esp. 95 - - - - 196, 306 Clew, In re, L. E. 8 Q. B. D. 511 ; 30 W. E. 705 - - 399 Clowes V. Hughes, L. E. 5 Ex. 160 ; 39 L. J. Ex. 62 ; 22 L. T. N. S. 103 - - - - - - - - 88 Clun's Case, Shower, 79 ; 10 Co. Eep. 127 ; Tudor's L. C. Conv. 3rd ed. 310 - - - - - 22, 25, 56, 165, 167 Coal Consumers' Association, In re, L. E. 4 Ch. D. 625; 46 L. J. Ch. 501 ; 35 L. T. N. S. 729 ; 25 W. E. 300 - 93, 105, 106, 108 Cochrane, Ex parte, Ee Mead, L. E. 20 Eq. 282; 44 L. J. Bktcy. 87 ; 32 L. T. N. S. 508; 23 W. E. 862- - - 82, '94, 100 Cocker v. Musgrove, 9 Q. B. 230 ; 15 L. J. Q. B. 365; 10 Jur. 922 _-.---- 270, 275 Cocks V. Gray, 26 L. J. Ch. 607 ; 1 Giff. 77 ; 3 Jur. N. S. 1115- 210, 350 Cole V. Sury, Latch. 264 - - - - - - 165 Coll V. Bishop of Coventry, Hob. 140, 153 - - - 19 Collier v. Clarke, 5 Q. B. 467 - - - - - 373 Collier i'. Nokes, 2 C. & K. 1013- - - - - 185 Collins V. Harding, Cro. Eliz. 606 - - - - 22, 23 Collyer v. Speer, 2 B. & B. 67 ; 4 J. B. Moore, 573 - 271, 275 Concannen v. Lethbridge, 2 H. Bl. 40 - - - - 355 Coode V. Johns, 17 Q. B. D. 714 ; 55 L. J. Q. B. 475 ; 35 W. E. 47 ; 51 J. P. 21 - - - - - 251, 260, 347 Cook V. Cook, Andr. 219 - - - - - - 271 Cook V. Corbett, 24 W. E. 181 - - - - - 254 Cook V. Guerra, L. E. 7 C. P. 132 - - - - - 89 TABLE OF CASES CITED. XXIX PAGE Coomber v. Howard, 1 C. B. 440 - - - - 165, 166 Cooper V. Blandy, 3 L. J. C. P. 274 - - - - - 36 Corbet's Case, 4 Eep. 82 - - - - - - 55 Cornish v, SearaU, 8 B. & C. 471 - - - - - 86 Corporation of Bii-mingbam, Ex parte, In re National Arms and Ammunition Co., Limited, 28 Cb. D. 474; 54 L. J. Cb. 673; 52 L. T. N. S. 237 - - - - - - 110 Coster I'. Wilson, 3 M. & W. 411 - - - - 205,206 Coteswortb u. Spokes, 10 C. B. N. S. 103 ; 4 L. T. N. S. 214 ; 7 Jur. N. S. 8U3; 30 L. J. C. P. 220 - - - 38, 189 Cotber v. Merrick, Hard. 95- - - - - 13, 56 Cotswortb V. Bettison, 1 Ld. Eaym. 105 ; 1 Salk. 247 - - 314 Coupland r. Maynard, 12 East, 134 - - - - - 37 Cowne V. Cordeiy, 10 W. E. 347 - - - - - 325 Cowper V. Fletcber, 6 B. & S. 464 ; 34 L. J. Q. B. 187 ; 12 L. T. N. S. 420 - - - - - - - 50, 00 Cox V. Bailey, 6 M. & G. 193 ; 6 Scott, N. E. 798 - - 218 Cox V. Bent, 5 Bing. 185 ; 2 M. & P. 281 - - - 10, 32 Cox V. Leigb, L. E. 9 Q. B. 333 ; 43 L. J. Q. B. 123 ; 30 L. T. N. S. 494 ; 22 W. E. 730 - - - - 187, 270 Cox V. Painter, 7 C. & P. 767 - - - - - 240 Crabb v. KilHck, 3 C. & P. 216 - - - - 214, 332 Crabtree v. Eobinson, L. E. 15 Q. B. D. 312 - - - 221 Cramer v. Mott, L. E. 5 Q. B. 357; 39 L. J. Q. B. 172; 22 L. T. N. S. 857 - - - - - - - 225 Cranley v. Kingswell, Hob. 207 - - - - - 182 Craven v. Ingbam, 58 L. T. N. S. 486 - - - - 81 Groom v. Talbot, Comb. 238 - - - - - . 4 Cropper v. Warner, 1 C. & E. 152 - - - - 142 Crosier v. Tomkinson, 2 Ld. Ken. 439 ; Barnes, 472 - - 137 Cross V. Ayres, 1 F. & F. 187 - - - - - 263 Cross V. Jordan, 8 Excb. 149 - - - - - 191 Crowder v. Self, 2 Moo. & E. 190 - - - 171, 339 Crowtber v. Eamsbotham, 9 East, 298 ; 7 T. E. 654 - 229, 334 Cuckson r. Winter, 2 Man. & Ey. 313 - - - 207, 330 CuUey V. Spearman, 2 H. Bl. 386 - - - - 45, 301 Camming v. Bedborougb, 15 M. & W. 438 - - - 176 Curtis v. Wheeler, Moo. & M. 493 - - - - - 43 Cutting V. Cooper, 2 Wils. 375 - - - - - 41 Cutting V. Derby, 2 W. Bl. 1077 - - - - - 164 XXX TABLE OF CASES CITED. D. PAGE Dalton V. Whittera, 3 Q. B. 9G1 ; 3 G. & D. 260; 12 L. J. Q. B. 55 - - - - - - 123, 330 Danby v. Watson, 36 L. T. N. S. 412 ; 41 J. P. 406 - - - 377 Dancer v. Hastings, 4 Bing. 2 ; 12 Moore, 34 - - 79, 80, 88 Daniel v. Grade, 6 Q. B. 145 ; 13 L. J. Q. B. 309 - - - 5, 33 Daniel v. Stepney, L. E. 9 Ex. 185 ; 41 L. J. Ex. 208 ; 27 L. T. N. S. 380; 22'W. E. 662 - - - - - 192 Darby v. Harris, 1 Q. B. 895 ; 10 L. J. Q. B. 294; 1 G. & D. 234; 5 Jur. 988 - - - - - - - - 121 Dargan v. Davies, L. E. 2 Q. B. D. 118 ; 46 L. J. Q. B. D. 122- 231 Darnton y. Pigman, Peake Add. Ca. Ill- - - - 96 Darrell v. Wilson, Cro. Eliz. 644 - - - - -12, 56 Davies v. Aston, 1 C. B. 746 ; 14 L. J. C. P. 228- - - 147 Davies v. Edmonds, 12 M. & W. 31 ; 1 D. & L. 395- - 271, 276 Davies v. Gyde, 2 A. .fe E. 623 ; 4 N. & M. 462 - - - 285 Davies v. Pedley, 3 L. J. C. P. 120 - - - - - 386 Davies v. Powell, Willes, 46 ; 7 Mod. 249 - - 141, 348 Davis, Ex parte, In re Pollen's Trustees, 54 L. T. N. S. 304 ; 55 L. J. Q. B. 217 ; 2 T. L. E. 229 - - 142, 143, 268, 271, 272 Davis & Co., In re, Ex parte Eawlings, W. N. 1888, p. 236 - 40, 68, 92 Dawe V. Cloud, 14 L. T. N. S. 155 - - - - 208 Dawson v. Cropp, 14 L. J. C. P. 281 ; 1 C. B. 961 ; 3 D. & L. 225 - _ - - - -172, 286, 288, 290 Dawson v. Eobins, L. E. 2 C. P. D. 38 - - - - 69 Day V. King, 5 L. J. M. C. 130 - - -. - - 407 Dean of Christ Chui'ch, Oxford v. Duke of Buckingham, 33 L. J. C. P. 322 ; 17 C. B. N. S. 391 - - - - 90, 210, 362 Dean of Ely v. Cash, 15 M. & W. 617 - - - - 179 Dean and Chapter of Eochester v. Pierce, 1 Camp. 466 - - 85 Delaney v. Fox, 2 0. B. N. S. 768 - - - - - 91 De Nicholls v. Saunders, L. E. 5 C. P. 589 ; 22 L. T. N. S. 661-89, 170 Dennis v. Bosden, 1 And. 253 ----- 182 Descharmos, Ex parte, 1 Atk. 103 - - - - - 94 Dethick r. Bradhorn, 2 Sid. 110, 117 - - - - 182 Devine, Ex parte, Cooke, 216 - - - - - 94 Dibble V. Bowater, 2 E. & B. 564; 22 L. J. Q. B. 396 -164, 185, 199 Dighton V. Greenvil, 2 Vent. 327 - - - - - 55 Dix V. Groom, L. E. 5 Ex. D. 91 ; 49 L. J. Ex. 430 - - 373 Dixon V. Harrison, Vaughan, 52 - - - 40, 46, 47, 59 Dixon V. James, 4 Burr. 2431 ; 2 Lutw. 1241 ; Freeman, 273 - 64, 299 Dixon V. Smith, 1 Swanst. 457 ----- 268 Dobson, Ex parte, 7 Vin. Abr. 74 - - - - - 103 TABLE OF CASES CITED. XXXI PAGE Dodd V. Morgan, 6 Mod. 215 - - 224, 230, 310, 314, 322 Dodd V. Saxby, 2 Stra. 1024 - - - - - 268 Dodds I'. Thompson, L. E. 1 C. P. 133; Har. & Eut. 319 - 20, 68, 69 Doe d. Angell v. Angell, 9 Q. B. 328 - - - - 179 Doe d. Bailey v. Foster, 3 0. B. 215 - - - _ _ 86 Doe d. Barber v. Lawrence, 4 Taunt. 23 - - - - 12 Doe d. Cheney i'. Batten, Cowp. 243- - - - - 284 Doe d. Chippingdale v. Dyson, 1 Moo. & M. 77 - - - 192 Doe d. Cox V. Eoe, 5 D. & L. 272 - - - - - 192 Doe d. David v. WilHams, 7 C. & P. 322- - - 188, 189, 190 Doe d. Edney v. Billett, 7 Q. B. 976 - - - - - 2, 33 Doe d. Flower v. Peck, 1 B. & Ad. 436 - - - - 189 Doe d. Garrod y. Olley, 12 Ad. & Ell. 481 - - _ . 92 Doe d. Haverson v. Franks, 2 C. & K. 678 - - 191, 192 Doe d. Higginbotham v. Barton, 11 A. & E. 314 - - - 91 Doe d. Holmes v. Darby, 8 Taunt. 538 - - - - 190 Doe d. Marriott v. Edwards, 5 B. & Ad. 1065 ; 3 N. & M. 193 - 91 Doe d. Palk v. Marchetti, 1 B. & Ad. 715 - - - - 43 Doe d. Pearson v. Eies, 8 Bing. 181 ; 1 M. & Sc. 264 - - 10 Doe d. Powell v. Eoe, 9 Dowl. 548 - - - - - 191 Doe d. Eobinson v. Hinde, 2 Moo. & E. 441 - - - 2 Doe d. Smelt v. Fuchau, 15 East, 286 - - - - 192 Doe d. Snell v. Tom, 4 Q. B. 615- - - - - 92 Doe d. ^Vheeldon v. Paul, 3 C. & P. 613 - - - - 165 Doe d. Wilkinson v. Goodier, 10 Q. B. 957 - - -88, 92 Doe d. Wyatt v. Byron, 1 C. B. 623 - - - - - 191 Doe V. Batten, Cowp. 243 - - - - - 1 90 Doe V. Bucknell, 8 C. & P. 566 - - - _ _ 91 Doe V. Davies, 7 Exch. 89 - - - - - 88 Doe V. Mitchell, 1 Brod. &B. 11 - - - _ _ 50 Doe r. Walker, 3 B. .& 0. Ill - - - - - 41 Doer. Wandlass, 7 T. E. 117 - _ _ _ 164,191 Doubitofte v. Curteen, Cro. Jac. 452 - _ _ _ 4 Drake v. Mitchell, 3 East, 251 - - - - - 286 Draper v. Thompson, 4 C. & P. 84 - - - 216, 224 Druce v. Bailey, 1 Vent. 275 - - - - _ _ 57 Dry Docks Corporation of London, In re, 59 L. T. N. S. 295, 763 ; 4 T. L. E. 666 ; 39 Ch. Div. 306 ; 37 W. E. 18 ; 58 L. J. Ch. 33- 110 Duchy of Lancaster's Case, 4 Inst. 209 ; Plowd. 221 - - 84 Duck V. Braddyll, 13 Price, 455 ; M'Clol. 217 - 122, 269, 271, 273 Dumergue v. Eumsey, 2 H. & C. 777 ; 33 L. J. Ex. 88 - - 120 Dumpor's Case, Sm. L. Cas. 8th ed. 61 - - - - 189 Duncan v. Meicleham, 3 C. & P. 172 - - - - 214 XXXU TABLE OF CASES CITED. PAGE Duncomb v. Eeeve, Cro. Eliz. 783 _ _ _ _ 235 Dunk V. Hunter, 5 B. & Aid. 322 - - - - - 8, 29 Duppa V. Mayo, 1 Saund. 287 ; 2 Salk. 578 - - 164, 165 Dyer v. Bowley, 2 Bing. 94- - - - --175 E. Eagletonv. Gutteridge, 11 M. & W. 465 ; 2 Dowl. N. S. 1053; 12 L. J. Ex. 359 - - - - - 36, 82, 222 Easton Estate and Mining Co. v. Western Waggon and Property Co., 54 L. T. N. S. 735 ; 50 J. P. 790 - - - - 154 Eaton V. Southby, Willes, 131 - - - - - 139 Eatough, Ex parte, Ee Cliffe, 42 L. T. N. S. 95 - - -82, 94 Ecclesiastical Commissioners of Ireland r. O'Connor, 9 Ir. C. L. E. 242 - - - - - - - - 34 Edgson V. Cardwell, L. E. 8 C. P. 647 ; 28 L. T. N. S. 819 - 364 Edmonds v. ChalHs, 7 C. B. 413 ; 18 L. J. C. P. 164- - 344, 356 Edmonds v. Eastwood, 2 H. & N. 826 - Edmondson v. Nuttall, 17 C. B. N. S. 280 - Efford IK Burgess, 1 Moo. & Eob. 23 - Eldridge V. Stacev, 15 C. B. N. S. 458; 12 W. E. 51 N. S. 291 _ _ - - - Elliott, Ex parte, 3 M. & A. 664 ; 3 Dea. 343 Ellis V. Eowles, Willes, 638 Ellis V. Taylor, 8 M. & W. 415 ; 10 L. J. Ex. 462 - Emott's Case, Dyer, 212 b England v. Cowley, L. E. 8 Ex. 126; 42 L. J. Ex. 80; N. S. 67 ; 21 W. E. 337 - - - - - - 225 Esdaile v. Payne, W. N. 1886, p. 35 ; 59 L. T. N. S. 568 ; 33 Sol. J. 107 ] 13 App. Cas. 613 - - - - - 179 Etberton i-. Popplewell, 1 East, 142 - - 229, 252, 327, 335 Evans v. Brander, 2 H. Bl. 547 - - - - - 355 Evans v. EUiott, 9 L. J. Q. B. 51 ; 5 A. & E. 142 ; 9 A. et E. 342 91, 293, 345, 361 Evans r. MatHas, 7 El. & Bl. 590 ; 26 L. J. Q. B. 309 - - 80 Evans v. Wright, 2 H. & N. 527 ; 27 L. J. Ex. 50 263, 204, 265, 325 Ewer V. Lady Clifton, Bull. N. P. 182 - - - - 285 Ewer V. Moyle, Cro, Eliz. 771 - - - - - 23 Exball Mining Company, In re, 4 D. J. & S. 377 - - - 108 F. Fabian & Windsor's Case, 1 Leon. 305 - - - - 164 Fairfax v. Gray, 2 W. Bl. 1326 - - - - - 66 Fairfax v. Lord Derby, 2 Vern. 612 - - - - 59 - - 185, 194, 322 - - 254 9 L. T. - 221, 222 - - 96 - - 299 - - 294 - - 22 28 L. T. TABLE OF CASES CITED. XXXlll PAGE Fanstawe, Ee, Ex j)arte Birmingham & Staff. Gas Co., 11 Eq. 615 ; 40 L. J. Bkcy, 52 ; 19 W. E. 603 ; 24 L. T. X. S. 639 95, 100 Earrance i-. Elkington, 2 Camj:). 591 - _ _ _ 178 Farrant v. Eobson, 3 L. J. C. P. 146- - - - - 135 Fell V. T\niittaker, L. E. 7 Q. B. 120 ; 41 L. J. Q. B. 78 ; 25 L. T. N. S. 880 - - - - - -337, 349, 361 Fenton v. Logan, 9 Bing. 676; 2 L. J. C. P. 102 - 140, 150, 349 Field V. Adames, 12 Ad. & Ell. 649 ; 10 L. J. Q. B. 2 - 139, 302 Field r. Mitcliell, 6 Esp. 71 - - - - - 335, 339 Field V. Newport Ey. Co., 27 L. J. Ex. 396 - - - 183 Fife V. Bousfield, 8 Q. B. 100; 13 L. J. Q. B. 306; 2 D. & L. 481 ; 8 Jur. 734 - - - - - - - 237 Fincli V. MiUer, 5 C. B. 428 - - - - - 295 Findon v. McLaren, 6 Q. B. 891 ; 14 L. J. Q. B. 183 - - 134 Firtli V. Purvis, 5 T. E. 432 - - - 240, 294, 314, 316 Fisher v. Algar, 2 C. & P. 374 _ _ _ _ 254, 339 Flesher c. Trotman, 2 L. T. N. S. 508 ; 6 L. T. N. S. 218 -41, 46 Fletcher v. MariUier, 9 Ad. & EU. 457 - - - - 200 Fletcher v. Saunders, 6 C. & P. 747 ; 1 ICoo. & Eob. 375 - 246 Fletcher v. Wilkins, 6 East, 283 - - - - - 348 Ford i: Tynte, 31 L. J. Ch. 177 - - - - - 141 Fordham v. Akers, 4 B. & S. 578 ; 33 L. J. Q. B. 67 ; 9 L. T. N. S. 478 ; 12 W. E. 201 - - - - - 356, 359 Forster v. Cookson, 1 Q. B. 419 ; 1 G. & D. 61 - - 269, 273 Fobs, Ex parte, 2 De G. & J. 230 - - - - - 100 Foss V. Eacine, 4 M. & W. 419 - - - - - 201 Foster r. Hilton, 1 Dowl. 35 - - - - - - 275 Foulget V. Taylor, 5 H. & N. 202 ; 1 L. T. N. S. 481 - 200, 279 Fowkes V. Joyce, 3 Lev. 260 ; 2 Wms. Saund. 290 ; 2 Vem. 129 - 128, 130, 284 Fox V. Yaughan, Het. 86 - - _ _ _ 182 Francis v. Wyatt, 3 Burr. 1498; 1 W. Bl. 483 - - - 128 FranUin v. Carter, 1 C. B. 750 ; 3 D. & L. 213 - - 38, 176 Eraser v. Swansea Canal Co., 1 Ad. & Ell. 354 - - - 132 Freeman v. Edwards, 2 Exch. 732 ; 17 L. J. Ex. 258 - 68, 88, 92 Freeman v. Eosher, 6 D. & L. 517 ; 13 Q. B. 780 ; IS L. J. Q. B. 340 ; 13 Jul". 881 - - - - - 82, 208, 324 French v. Phillips, 1 H. & N. 564 ; 26 L. J. Ex. 82 - - 171 Frusher v. Lee, 10 M. & ^.'709 ; 12 L. J. Ex. 321 - - 145, 255 Fryman's Estate, In re, 38 Ch. D. 468 ; 57 L. J. Ch. 862 ; 36 W. E. 631 ; 58 L. T. N. S. 872 - - - - - 96 Fuller, Ex parte, 2 D. & L. 98 ; 13 L. J. M. C. 142 ; 8 Jur. 604 206 Furley v. Wood, 1 Esp. 198 - - - - - 85 Furneaux v. Fothorby, 4 Camp. 135 - - - 19.S, 200, 333 XXXIV TABLE OF CASES CITED. G. PAGE Gage V. CoUins, L. E. 2 C. P. 381 ; 36 L. J. C. P. 144 - - 279 Gale V. Wnks, 2 Dowl. Eep. 189 - - - - - 268 Galloway v. Bird, 4 Bing. 299 ; 12 Moore, 547 - - 345, 361 Gambrell v. Earl of Falmoutli, 5 Ad. & Ell. 403; 4 Ad. & Ell. 73- 172, 287, 333 Gardiner v. Williamson, 2 B. & Ad. 336 - - - 5, 33, 75 Gargrovo v. Smith, 1 Salk. 221 - - - - - 307 Garnett v. Bradley, L. E. 3 Ap. Cas. 970 _ _ - 317 Gaslight & Coke Co. v. Hardy, 17 Q. B. D. 619; 55 L. T. N. S. 585; 2 T. L. E. 851 - - - - - - 120, 156 Gaslight & Coke Co. v. Herbert Smith & Co., 3 T. L. E. 15 - 120, 156 Gates V. Bayley, 2 Wils. 313 - - - - - 235 Gauntlett v. King, 3 C. B. N. S. 59 - - - 120, 208, 324 Gawler v. Chaplin, 2 Exch. 503, 507 - - - 274, 275 Gay V. Mathews, 4 B. & S. 425 ; 32 L. J. M. C. 58 ; 7 L. T. N. S. 504 - - - - - - - - 348 General Share Co. ^'. Whetley, L. E. 20 Ch. D. 200 - - 111 Gentr. Cutts, 11 Q. B. 288; 17L. J. Q. B. 55 - - - 358 George v. Chambers, 2 Dowl. N. S. 783 ; 11 M. & W. 149 ; 7 Jur. 836 ; 12 L. J. M. 0. 94 - - - - 344, 346 Gothin V. Wilks, 2 Dowl. Eep. 189 - - - - 94, 268 Gibbs V. Cniikshank, L. E. 8 C. P. 454 ; 42 L. J. C. P. 273 ; 28 L. T. N. S. 104 _ _ _ . - 88, 362, 367 Gibbs V. Stead, 8 B. & C. 528 ; 2 Man. & Ey. 547 - - - 377 Gibson v. Ireson, 3 Q. B. 39 - - - - 125, 126 Gilbertson v. Eichards, 5 H. & N. 453 ; 29 L. J. Ex. 213; 6 Jur. N. S. 672 - - - - - - - 69, 70 Giles V. Spencer, 3 C. B. N. S. 244 ; 26 L. J. C. P. 237 - 36, 151, 283 Gilham v. Ai-kwriglit, 16 L. T. N. S. 88 - - - - 199 Gillingham v. Gwyer, 16 L. T. N. S. 640 . - - 194 Gilman v. Elton, 3 B. & B. 75 ; 6 Moore, 243 - - 126, 134 Gimbart v. Pelah, 2 Stra. 1272 - - - - - 237 Gingell V. Turnbiill, 3 Bing. N. C. 881 - - - - 372 Gisbourn v. Hurst, 1 Salk. 249 - - - - - 126 Gladman v. Plumer, 15 L. J. Q. B. 79 ; 10 Jur. 109 - - 36 Glover V. Coles, 1 Bing. 0; 7 Moore, 231 ; 2 B. & B. 367 - 124 Glyn V, Thomas, 11 Exch. 870 ; 25 L. J. Ex. 125 - - 171, 340 Goodman v. Ayling, Yelv. 148 ----- 361 Goodwin v. Cheveley, 4 H. & N. 631 ; 28 L. J. Ex. 298 - - 304 Gore V. Goston, 1 Stra. 643 - - - - - 271 Gore V. Lloyd, 12 M. & W. 463 - - - - - 166 Gorton V. Falkncr, 4 T. E. 507 - - - - 121, 140, 150 TABLE OF CASES CITED. XXXV PAGE Gouge V. Hayward, Bridgm. o4 - - - - - 62 Gould V. Bradstock, 4 Taunt. 5G2 _ _ _ . 218 Gouldsworth v. Elliott, 11 M. & W. 33V - - - - 86 Governors of Bristol Poor v. Wait, 1 Ad. & Ell. 2G4 ; 3 L. J. M. C. 71 - - - - - - - 382 Governors of Christ's Hospital v. Ilarrild, 2 M. & G. 713 - - 17 Grace v. Morgan, 5 L. J. C. P. 180 - - - - 372 Graham v. Allsopp, 3 Exch. 186 ; 18 L. J. Ex. 85 - - - 174 Graham v. Tate, 1 M. & S. 609 - - - - - 263 Grant t'. EUis, 9M. & W. 113 - - - - - 179 Gravenor v. Woodhouse, 2 Bing. 71 ; 9 Moore, 148 - - 349 Graj' V. Chamberlain, 4 C. & P. 200- - - - - 105 Gray r. Stait, L. E. 11 Q. B. D. 068; 52 L. J. Q. B. 412; 49L.T. N. S. 288 - - - - - - 53, 187, 201 G. E. Bail. Co. v. Harwich fMayor, &c.), 41 L. T. N. S. 533; 44 J. P. 104 - - ^- - - - - 29, 133 Green v. Austin, 3 Camp. 260 - - - - - 269 Green v. Duckctt, L. E. 11 Q. B. D. 275; 52 L. J. Q. B. 435; 48 L. T. N. S. 677- - - - - - - 309 Green v. St. Katherine's Dock Co., 19 L. J. Q. B. 53; 13 Jur. 1116 -------- 133 Green v. Wise, W. N. 1877, p. 130 - - - - - 324 Green v, Wroe, W. N. 1877, p. 130 - - - - 208 Griffin V. Scott, 2 Ld. Eapn. 1424; 2 Stra. 717 - - - 252 Griffiths V. Chichester, 7 Exch. 95, n. (a) ; 21 L. J. Ex. 290, n. (3) 286 Griffiths V. Puleston, 13 M. & W. 358 - - - - 186 Griffiths V, Stevens, 1 Chit. Eep. 196 - - - - 346 Grimwood v. Moss, L. E. 7 0. P. 360 ; 41 L. J. C. J. 239 - - 189 Groom v. Bluck, 2 M. & G. 567 ; 2 Scott, N. E. 89 - - 216 Grove, Ex parte, 1 Atk. 104- - - - _ . 99 Groves v. D'Acastro, Bunb. 194 - - - - - 267 Guardians of Poor of Woodbridge Union v. Guardians of Carl- ford Union, 13 Q. B. 269 ; 18 L. J. Q. B. 126 - - - 30 Guardians of Tynemouth Union v. Guardians of Backworth Union, 59 L. T.N. S. 178- - - - _ _ 3S4 Gulliver v. Cosens, 1 C. B. 788 ; 14 L. J. C. P. 215 - 308, 337 Gwilliam v. Barker, 1 Price, 274 - - - - - 272 Gwillim V. Holbrook, 1 Bos. & Pul. 410 - - - - 358 H. Haines v. Welch and Marriott, L. E. 4 C. P. 91 ; 38 L. J. C. P. 118; 19L. T. N. S. 422 . _ _ _ 45,186 Hale, Ex parte, Ee Binns, L. E. 1 Ch. D. 285; 45 L. J. Bktcy. 21 ; 24 W. E. 300 ; 33 L. T. N. S. 706 - - - 18, 94 6-2 XXXVl TABLE OF CASES CITED. PAGK HaU V. Butler, 10 A. & E. 204 - - - - - 86 Hall V. Comfort, 18 Q. B. D. 11 - - - - - 101 HaU V. Harding, 1 W. Bl. 673 ; 4 Burr. 2426 - - 64, 298, 299 Hammerton y. Stead, 3 B. & C. 483 - - - - 6, 8, 271 Hammond v. Bendyshe, 13 Q. B. 869 - - - - 408 Hammond v. Mather, 3 F. *& F. 151- - - - - 192 Hampson v. Fellows, L. E. 6 Eq. 578 ; 19 L. T. N. S. 6- - 88 Hancock v. Austin, 14 C. B. N. S. 634; 32 L. J. C. P. 252; 8 L. T. N. S. 429 - - - - 5, 9, 30, 34, 35, 194, 219 Hancock v. Caffyn, 1 L. J. C. P. 104 - - - - 103 Handcock v. Foulkes, 9 M. & W. 431; 11 L. J. Ex. 381; 1 Dowl. Eep. N. S. 658 - - - - - - 333 Hanmer v. King, 20 Q. B. D. 422 ; 57 L. T. N. S. 367 - - 150 Harding v. Hall, 14 L. T. N. S. 410 ; 14 W. E. 14 - - 262 Harris, Ex parte, 16 Q. B. D. 130 - - - - - 162 Harris v. Shipway, Bull. N. P. 182 - - - - 285 Harris v. Thirkell, 20 L. T. 98 - - - - - 202 Harrison, Ex parte, Ee Betts, L. E. IS Cli. D. 127 ; 50 L. J. Ch. 832 ; 45 L. T. N. S. 290 ; 30 W. E. 38- - ^ - 98 Harrison, Ex parte, Ee Peake, L. E. 13 Q. B. D. 753; 53 L. J. Ch. 977 - - - - - - - 95, 100 Harrison v. Barnby, 5 T. E. 246 - - - - - 50 Harrison v. Barry, 7 Price, 690 - - - 17, 169, 253, 271 Harrison v. Wardle, 5 B. & Ad. 153 _ _ _ _ 358 Hart V. Leach, 1 M. & W. 560; 2 Gale, 172; Tyr. & Gr. 1010; 5 L. J. Ex. 244 - - - - 209, 259, 262, 331 Hartley v. Moxham, 3 Q. B. 701- - - - - 225 Harvey v. Pocock, 11 M. & W. 740 ; 12 L. J. Ex. 434 - - 322 Haseler v. Lemoyne, 5 C. B. N. S. 530; 28 L. J. C. P. 103 82, 208, 209, 324 Hatch V. Hale, 15 Q. B. 10 ; 19 L. J. Q. B. 289 ; 14 Jur. 459 - 82, 215, 292 Hawkins v. Walrond, L. E. 1 C. P. D. 280 ; 45 L. J. C. P. D. 772 ; 35 L. T. N. S. 210 - - . _ 145,255 Hay ward v. Haswell, 6 Ad. & Ell. 265 - - _ _ 31 Heawood v. Bone, L. E. 13 Q. B. D. 179- - - - 160 Hefford v. Alger, 1 Taunt. 218 - - - - 291, 372 Hegan v. Johnson, 2 Taunt. 148 - - - - - 8, 30 Hellawell v. Eastwood, 6 Exch. 295 ; 20 L. J. Ex. 154 - 121, 122, 344, 356 Henchett v. Kimpson, 2 Wils. 140 - - -267, 269, 273 Heysham v. Heskett, Ex parte Arnison, L. E. 3 Ex. 56 ; 37 L. J. Ex. 57 ; 17 L. T. N. S. 480 - - - - 73, 259 Hickman v. Machin, 4 H. & N. 722 - - - - 88 TABLE OF CASES CITED. XXXVll PAQE Hill, Ex parte, Ee Eoberts, L. E. 6 Ch. D. 63 ; 46 L. J. Bktcy. 116 ; 25 W. E. 784 ; 37 L. T. N. S. 46 - - - 95, 100 Hill V. Grange, Plowden, 171- - - - -167 Hill V. Saunders, 2 Bing. 112 ; 4 B. & C. 529 - - _ 54 Hill's Case, 4 Leon. 187 ------ 171 Hills V. Street, 5 Bing. 39 - - - - 25i», 2G1, 331 Hilton V. Hankesson, 27 L. T. N, S. 519- - - - 305 Hindle v. Blades, 5 Taunt. 224 - - - - - 355 Hoare v. Lee, 17 L. J. C. P. 196; 5 C. B. 754 ; 5 D. & L. 765 ; 12 Jur. 356 ------- 323 Hobj' V. Eoebuck, 2 Marsh, 433 - - - - - 42 Hodeson v. Gresil, Yelv. 104 - - _ _ _ 299 Hodges V,'. Lawrance, 18 J. P. 347 - - - - - 195 Hodgkinsou r. Snibson, 3 Bos. & Pul. 6U3 - - - 366 Hodgson V. Gascoyne, 5 B. & Aid. 88 - - - - 270 Holgate V. Kaj% 1 C. & K. 341 - - - - - 33 Holland v. Bird, 3 M. «& S. 363 ; 10 Bing. 15 - - 292, 336 Holland v. Hodgson, L. E. 7 C. P. 328, 337; 41 L. J. C. P. 146, 150 - - - - - - - - 123 Holland v. Palser, 2 Stark. 161 - - - - 18, 168 Hood ;•. Bell, 1 Ld. Eaj-m. 172 ; 3 Salk. 136 - - - 58 Hopcraft v. Keys, 9 Bing. 613; 2 M. & Scott, 760 - 30, 37, 115, 282 Hopkins v. Helmore, 8 A. & E. 463 ; 3 Nev. & P. 452 - 18, 168 Hoj^kins v. Shrole, 1 Bos. & Pul. 382 - - - - 368 Home V. Lewin, Ld. Eaym. 639, 641 - - - - 182 Horsefall v. Davy, Holt. 147 ; 1 Stark. 169 - - - - 205 Horsford v. Webster, 1 Cr. M. & E. 696 ; 4 L. J. Ex. 100 ; 5 Tyr. 409 - - - - . - 151^ 283 Hoskins v. Knight, 1 M. & S. 245 - - - - - 271 Hoskins v. Eobins, 2 Saund. 328- _ _ _ 298, 301 Howe V. Scarrott, 4 H. & N. 723 ; 28 L. J. Ex. 325 - 54, 78 Hudd V. Eavonor, 2 B. & B. 662 ; 5 Moore, 542 - - 249, 290 Hudson V. Snelgar, 2 Eoll. Eep. 212 - - - - 51 Hughes V. Browne, 7 Ir. L. E. 492 - - _ _ 334 Hughes V. Hughes, 3 Bro. Cha. Ca. 87 - - - - so Humberstone v. Dubois, 10 M. & W. 765 - - - 178 Humfrey V. Gery, 7 C. B. 567 - - - - - 173 Hunt v. Eound, 2 Dowl. 558 _ - - _ _ 373 Hunter v. Nockold, 1 Mac. & Gor. 640 ; 1 Hall & Tw. 644 - - 178 Huntley v. Eoper, 1 And. 21 - - - - 21, 23 Hurrell v. Wink, 8 Taunt. 369 - - - - - 376 Hurry v. Eickman, 1 ]\[oo. & Eob. 126 - - 82, 209, 324, 332 Hutchins r. Chambers, 1 Wm. Saund. 201, n. (1); 1 Burr. 589 - 172, 173, 174, 287, 289, 334 XXXVlll TABLE OF CASES CITED. PAGE HutcHns V. Scott, 2 M. & W. 809 ; 6 L. J. Ex. 186 - 166, 224 Hutt V. Morrell, 11 Q. B. 425, 438 ; 16 L. J. Q. B. 240 ; 11 Jur. 347 ; 12 Jur. 3o2 - - - - - - - 145 Ibbett V. Do la Salle, 6 II. & N. 233 ; 30 L. J. Ex. 44 - - 218 Incop V. Moorchurcli, 2 E. & F. 501 - - - - 199 Iredale v. KendaU, 40 L. T. N. S. 362 - - - - 312 Ireland v. Jolmson, 1 Biug. N. C. 162 ; 4 M. & Scott, 706 - - 329 Iremonger v. Newsom, Latch. 261 - - - - 114 Irish Land Commission v. Grant, 52 L. T. N. S. 228 - - 179 J. Jackson, Ex parte, Ee Bowes, L. E. 14 Cli. D. 725; 43 L. T. N. S. 272 ; 29 W. E. 253 - - - - - 97, 100, 101 Jackson v. Hanson, 8 M. & W. 479 ; 10 L. J. Ex. 396 ; 1 Dowl. Ecp. N. S. 69 - - - - - - - 357 Jacob V. King, 1 Marsh. 135; 5 Taunt. 451 - - 248, 347 Jacobsohn v. Blake, 6 M. &. G. 919 - - - - - 322 James v. Salter, 3 Bing. N. C. 505; 5 L. J. C. P. 112; 6 L. J. C. P. 171 - - - - - - - 67, ISO Jamieson v. Trevylyan, 10 Exch. 748; 24 L. J. Ex. 74 - - 365 Jeffery v. Bastard, 4 Ad. & EU. 823 - - - - - 355 Jemott ('. Cowley, 1 Saund. 113 - - - - - 15 Jenkins v. Biddulph, 4 Bing. 160; 5 L. J. C. P. 138 - - 372 Jenkins v. Cooke, 1 Ad. & Ell. 372 - - - - 132 Jenner v. Clegg, 1 Moo. & Eob. 213 - - - 18, 33, 38, 168 Jenner v. Whitehouse, Moo. & Eob. 213- _ _ _ i73 • 37 L. T. N. 8. 432 ; 26 W. E. 214 - - - .' . 158 Phillips V. Naylor, 22 J. P. 355 - - _ _ _ 38*; Phillips V. Shervill, 6 Q. B. 944 ; 14 L. J. Q. B. 144 - 103, 143 Phillips V. T\Tiitsod, 2 E. & E. 804 ; 29 L. J. Q. B 146 • '^ L T N. S. 278; 6 Jur. N. S. 729 - _ - ' ~ _ ' I 229 Philpot V. Lehain, 35 L. T, N. S. 855 - - _ 249, 252 '^64 Pigott V. Bertles, 1 M. & W. 441 ; 5 L. J. Ex. 193 ; Tyr. & Gr 729; 2 Gale, 18 - - -124, 138, 147,' 249, 288, 338, 339 Pilkington r. Dalton, Cro. Eliz. 575 - - _ 56' 167 Pilkington I'. Hastings, Cro. Eliz. 813 - _ _ _ 293 Pilton, Ex parte, 1 B. & A. 369 - - - . _ 205 Pirn V. Greville, 6 Esji. 95 - - - _ _ _ jg'^ Pinero v. Judson, 6 Bing. 206 - - _ _ Pinhorn v. Souster, 8 Exch. 763 ; 22 L. J. Ex. IS, 266 Pitt V. Shew, 4 B. & Aid. 208 - - - ' _ n^o Pitt V. Snowdon, 3 Atk. 750 - - - _ Place V. Eagg, 4 M. & E. 277 - Pluck V. Digges, 2 Dow & Clarke, 180 - - - - 198 Plumer V. Brisco, 11 Q. B. 46 - - - _ _ 35- Plummer, Ex parte, 1 Atk. 103 - - _ - 82 94 PoUen's Trustees, In re. Ex parte Da^ds, 54 L. T. N". S 304 • 55 L. J. Q. B. 217 ; 2 T. L. E. 229 - 142, 143, 268', 271, 27"^ Pollitt V. Forrest, 11 Q. B. 949 - - . _' _ 5^ 35 Pollock V. Stacey, 5 Q. B. 1033 - - - _ -42 Pool V. Lewin, Crawcoiu- & Co., 1 T. L. E. 165 - - _ 2*^6 Pool V. Neel, 2 Sid. 29 - - - _ _ - 55 Poole's Case, 3 B. & C. 368 ; 1 Salk. 368 ; 3 Atk. 13- - - 120 Poole V. Longueville, 2 Saund. 289 - - _ _ 303 30 88, 92 SO 120 TABLE OF CASES CITED. xlvii PAGE Pope V. Biggs, 9 B. & C. 245 - - - - -90,91 Tope V. Davis, 2 Tauut. 252 ; 2 Cainpb. 2GG - - - 237 Postman v. Ilarroll, G C. & P. 225 - - - - 200, 333 Potten V. Bradley, 2 Moo. & Payne, 78 - - - - 361 I'otter V. North, 1 Saund. 347, n. (4) ; 1 W. Sannd. 035 - 214, 3G1 Poultnor I'. Holmes, Stran. 405 - - - - - 42 Powis V. Smith, 5 B. & Aid. 850; 1 ]). & Pyl. JOO - - _ 50 Poyntei- v. Buckley, 5 C. & P. 512 - - - 255, 331 Preece v, Coirio, 5 Bing. 24- - - - --42 Prescott V. Boucher, 3 B. & Ad. 849 - - - 58, 78 Price V. "VVorwood, 4 II. & N. 512 ; 28 L. J. Ex. 329- - - 191 Priestley v. Watson, 2 Cromp. & M. G91 ; 3 L. J. M. ('. 113; 4 Tyr. 910 ------ - 391 Progress Assurance Co., In re, L. E. 9 Eq. 370; 22 L. T. X. 8. 707- - - - - - - - _ 109 Proudlovc i\ Twcmlow, 1 C. & M. 320 ; 2 L. J. Ex. Ill - 124, 138, 253, 331 Pugh V. Griffith, 7 A. & E. 827 - - - - - 222 Pulbrook V. Ashby & Co., 56 L. J. (j. B. 376 ; 35 W. E. 779 - 101 Pullon r. Palmer, 3 Salk. 207 ; 5 Mod. 72 ; Carth. 328 - 48, 50, 77 Punnett, Ex parte, Ee Kitchen, L. E. 16 Ch. D. 226 ; 50 L. J. Ch. 212 ; 29 W. E. 129; 44 L. T. N. S. 220 - - - 98 Piu'ssell, Ex parte, In re Xew City Constitutional Club, 34 Ch. D. 640 ; 55 L. J. Ch. 704 ; 50 L. J. Ch. 332 ; 54 L. T. N. S. 864 ; 56 L. T. N. S. 792 ; 35 W. E. 421 ; 2 T. L. E. 758 ; 3 T. L. E. 331- - - - - - - - - 112 Pusey V. Pusey, 1 White & Tudor's Leading Cas. 890 - - 321 Pyle V. Partridge, 15 M. & W. 20 - - - - - 215 Q. Queen's Benefit Building Society, Ex parte, Ee ThreKall, L. E. 16 Ch. D. 274; 50 L. J. Ch. 3i8; 44 L. T. N. S. 74; 29 W.E. 128 - - - - - - - - 99 E. Eand i'. Yaughan, 1 Bing. N. C. 767; 4 L. J. C. P. 239- 198, 199 Eandall v. Jenkins, 1 Mod. Eep. 110 ; 2 Lev. 87 - - 13, 56 Eapley v. Taylor, IC. & E. 150 - - - -255, 331, 339 Eatt V. Parkinson, 20 L. J. M. C. 208 - - - - 408 EawHngs v. Bell, 1 C. B. 951 ; 14 L. J. C. P. 265 ; 9 Jurist, 973- 82 EawHngs, Ex parte. In re Davis & Co., W. N. 1888, p. 230 40, 08, 92 Eawson v. Eicke, 7 A. & E. 451 ; 2 N. & p. 443 . . _ 90 xlviii TABLE OF CASES CITED. PAGE Eead's Case, Cro. Eliz. 594 - - - - - - 140 EeddeU v. Stowey, 2 M. & Eob. 358 - - - - 313 Eede v. Burley, Cro. Eliz. 596 - - - 127, 129, 130 Eeece v. Strousbcrg, 54 L. T. N. S. 133 ; 50 J. P. 292 - 90, 210, 362 Eeed v. Thoyts, 6 M. & W. 410 ; 8 Dowl. 410 - 268, 269, 275 Eees d. Powell v. King, 2 Brod. & B. 514 ; Forrest, 19 - - 191 E. V. Barclay, JJ. of Essex, 46 J. P. 167- - - 379, 380 E. V. Binney, 1 E. & B. 810 - - - - - - 410 E. V. Boyle, 7 Cox, C. C. 328 - - - - - 381 E. V. Clarke, 4 L. J. M. C. 92 - - - - 398, 405 E. V. ColUns, 21 L. J. M. C. 73 379 E. V. Dyer & Hall, J J. of Middlesex, 2 Ad. & Ell. 600 - - 381 E. V. East Pomfret, 5 M. & S. 139 - . _ - 3 E. V. ElUs & Greenwood, 2 Dowl. Eep. N. S. 361 ; 12 L. J. M. C. 20 - - - - - - - - 385 E. V. Handsley, JJ. of Burnley, L. E. 7 Q. B. D. 398 - - 384 E. V. Hughes, JJ. of Stafford, 3 Ad. & Ell. 425 - - - 383 E. V. Inhabitants of St. Austell, 5 B. & A. 693 - - - 3 E. V. JJ. of Bucks, 3 L. J. M. C. 58 - - - - - 379 E. V. JJ. of Essex, 41 J. P. 676 - - - - - 379 E. V. JJ. of Kingston, 23 J. P. 5 ; 1 El. B. & E. 256 ; 27 L. J. M. C. 199 - - - - - - - 379, 383 E. V. JJ. of Leicester, 8 E. & B. 557 - _ _ _ 394 E. V. JJ. of Middlesex, 12 L. J. M. C. 36 - - - - 383 E. V. JJ. of Newcastle, Ex parte Brown, 26 W. E. 727 ; 42 J. P. 598; 38 L. T.N. S. 682 - - - - - 399 E. V. JJ. of New Sarum, 17 J. P. 53 ; 20 L. T. N. S. 207 - 386, 387 E. V. JJ. of Norfolk, 7 El. & Bl. 950 - - - - 383 E. V. JJ. of Oxford, 18 L. J. M. C. 222 - - - - 394 E. V. JJ. of Salop, 13 Q. B. 654 - - - - - 395 E. V. JJ. of St. Albans, 3 B. & C. 698 - - - - 394 E. V. JJ. of St. Peter's Library, York, 2 L. J. M. C. 46 - - 391 E. V. JJ. of Worcester, 12 Ad. & Ell. 779 - - - 383 E. V. Newcombe, 4 T. E. 368 - - - - - 383 E. V. North Duffield, 3 M. & S. 247 - - - - 85 E. V, Oliver, Bunb. 14 - - - - - - 346 E. V. Paget, L. E. 8 Q. B. D. 151 ; 30 W. E. 337 ; 46 J. P. 151 - 399 E. V. Paynter, 7 Q. B. 255 ; 10 Q. B. 988 ; 11 L. J. M. C. 136 - 380 E. V. Pearson, 19 J. P. 294 - - - - - 380 E. V. Pratt, L. E. 5 Q. B. 176 ; 39 L. J. M. C. 73 - - - 410 E. V. Trecothick, 2 Ad. & Ell. 405 - - - - 383 E. V. Yarmouth, 16 L. J. M. C. 175 _ _ . _ 384 Eeg. V. Boteler, 33 L. J. M. C. 101 - - - - 379 TAlilJ-: OF CASES CITKl). xHx PAGE Reg. V. Bradiiliaw, JJ. of Wai-wick, 2 El. & El. 83G - - 379 Hog. V. Burgess, 2 T. L. R. ITG - - - - - 210 Reg. V. Coiy, 10 Cox, C. C. 23 - - - - - 141 Reg. V. Eastern Counties Ry. Co., o El. & Bl. 974 - - 376 Reg. V. Gee, JJ. of Chesterfield, 1 T. L. R. 388 - - - 319 Reg. V. Gurdon, 12 W. R. 201 - - - - 3o6, 359 Reg. V. Headlain, 21 Q. B. D. 96; 57 L. J. M. C. 89; 52 J. V. 388 ; 4 T. L. R. 579 - - - - - - 380 Reg. V. JJ. of Gloucester, 24 J. P. 39 - - - - 377 Reg. V. JJ. of Kent, 10 L. T. N. S. 673 - - - - 376 Reg. V. JJ. of Radnor, 9 Dowl. 90 - - - - 206 Reg. V. JJ. of Shropshire, L. R. 6 Q. B. D. 669 ; 50 L. J. M. C. 72 - 207 Reg. V. Marsham, 50 L. T. N. S. 142 - - - - 384 Reg. V. Morrish, 32 L. J. M. C. 245 - - - _ 9 Reg. V. Price, L. R. 5 Q. B. D. 300 ; 42 L. T. X. S. 439 ; 44 J. P. 315 ; 49 L. J. M. C. 49 - - - - 375, 393 Reg. V. Raines, 1 El. & Bl. 855 ; 22 L. J. Q. B. 223 - 356, 359 Reg. V. Robinson, 28 L. J. M. C. 58 - - - - 141 Reg. V. Shickle, L. R. 1 C. C. R. 158 ; 38 L. J. M. C. 21 - - 141 Reg. V. Westbrook, 10 Q. B. 178 - - - - 5 Reg. V. WiUiams, 19 L. J. M. C. 126 ; 2 C. & K. 1001 ; 4 New Sess. Cas. 137 - - - - - 315, 381 Regent United Service Stores, In re, L. R. 8 Ch. D. 616; 38 L. T. N. S. 130 - - - - 94, 105, 108, 398 Regnarti;. Porter, 7 Bing. 451 ; 5 M. & P. 370 8, 30, 170, 282 Rex V. Benn and Church, 6 T. R. 198 - - - - 376 Rex V. Bradshaw, 7 C. & P. 233 - - - - 312, 335 Rex V. Chipping Norton, 5 East, 239, 242 - - - - 85 Rex V. Clarke, Cowp. 612 . . - _ - 237 Rex V. Cotton, 2 Yes. sen. 288; Parker, 121 - - - 315 Rex V. Davis, 5 B. & Ad. 551 ; 2 N. & M. 349 ; 2 L. J. M. C. 29 206 Rex V. Flanagan, 10 Cox, C. C. 561 - - - 190, 209 Rex V. Ford, 2 Ad. & EU. 588 ; 4 L. J. M. C. 58 - - - 377 Rex V. Hasler, JJ. of Essex, 3 L. J. M. C. 56 - - - 379 Rex V. Hodgson, 1 Leach C. C. 6 ; 1 East P. C. 258 - - 202 Rex V. Horsley, 8 East, 410 - - - - - 61 Rex V, JJ. of Cheshire, 5 B. & Ad. 439 - - - - 205 Rex V. Morgan, Cald. 157 - - - - - 205 Rex V. Rabbits, 6 D. & Ry. 243 - - - - - 205 ReyneU v. Campernoon, Cro. Car. 228 - - - 140, 302 Reynolds v. Barford, 7 M. & G. 449; 2 D. & L. 327- - - 272 Rich V. Woolley, 7 Bing. 651 ; 5 M. & P. 663 - - 201, 316 Richmond y. Butcher, Cro. Eliz. 217; Dyer, 45 - - - 56 o. d 1 TABLE OF CASES CITED. PAGE Eiclgway v. Lord Stafford, 6 Excli. 4()o ; 19 L. J. Ex. 22G 145, 255 Eiseley v. Eyle, 11 M. & W. IG; 1 Dowl. Eep. N. S. GGO; 12 L. J. Ex. 322 - - - - - - 30, 142, 269, 270 Eiver Swale Brick & Tile Company, Limited, 48 L. T. N. S. 778 113 Eivis V. Watson, 5 M. & W. 255 ; 9 L. J. Ex. 67 - - 46, 51, 68 Eoberts v. Jackson, 2 Peake, 36 - - - - - 150 Eoberts v. Snell, 1 Man. & G. 577 - - - - 345, 348 Eobinson v. Hoffman, 4 Bing. 562 ; 1 M. & P. 474 ; 3 C. & P. 234 - - - - - - - 45, 48, 215 Eobinson v. Loaroyd, 7 M. & W. 48 - - - - - 3 Eobinson v. Waddington, 13 Q. B. 753 ; 18 L. J. Q. B. 250 228, 251 Eobinson v. Walter, 3 Bulstr. 269 - - - - 137 Eocke V. HiUs, 3 T. L. E. 298 - - - 247, 327, 330 Eockingbam (Lord) v. Penrice, 1 Salk. 578 ; 1 P. Wms. 177 - 26, 165 Eoden V. Eyton, 6 0. B. 427 ; 18 L. J. C. P. 1 - - 247, 335 Eoe V. Asbburner, 5 T. E. 163 - - - - _ 10 Eoffey V. Henderson, 17 Q. B. 574 - - - - 330 Sogers V. Bii-kmire, 2 Stra. 1040 ; Eep. Temp. Hard. 245 - 171, 193 Eogers v. Humpbreys, 4 Ad. & EU. 299 ; 5 N. & M. 511 ; 1 H. & W. 625 ; 5 L. J. K. B. 65 - - - - 44, 91, 93 Eogers V. Parker, 18 C. B. 112 ; 25 L. J. C. P. 220-124, 252, 253, 329 Eollaston v. Leon, 7 H. & N. 73 ; 31 L. J. Ex. 96 - - 30 Eossi'. Clifton, 11 Ad. & Ell. 631 - - - - - 333 Eotbery v. Wood, 3 Camp. 24 - - - - 270, 276 Eusbton's Case, Dy. 4b- - - - -_23 EusseU V. Eyder, 6 C. & P. 416 - - - - - 222 Eussell V. Sboolbred, 29 Cb. D. 254 - - - - 43, 286 Eyan v. Sbilcock, 7 Excb. 72 ; 21 L. J. Ex. 55 - - 219, 220 Eyan v. Tbompson, 37 L. J. C. P. 134 - - - - 177 Eyder v. Edwards, 3 Man. & Gr. 202 - - - - 358 S. Sabonrin v. Neale, 2 H. & W. 103 - - - - 381 Sacbeverell v. Frogato, 1 Yent. 162; 2 Saund. 367 - 12, 13, 55, 56, 57, 61 Sacker v. Cbidley, 13 W. E. 690 - - - - - 100 Safferv v. Elgood, 1 A. & E. 191 ; 3 L. J. K. B. 151 ; 3 N. & M. 346 ----___ 114, 116 Salmon v. Mattbews, 8 M. & W. 827 - - - - 22 Salwey v. Salwey, Amb. 693 ; 2 Dick. 434 - - _ _ 78 Sandars, In re, Ex parte Sarjeant, 52 L. T. N. S. 516; 54 L. J. Q. B. 331 ; 49 J. P. 582 - - - - - 212 TABLE OF CASES CITED. H PAGE Sands V. Hempston, 2 Leon. 142 - - - - - 63 Sapsfordv. Flctclier, 4T. E. 511 - - - - - 175 Sarjcant, Ex parte, Ee Sandars, 52 L. T. N. S. 510; 54 L. J. Q. B. 331 ; 49 J. P. 582 - - - - - - 212 Saunders v. Musgrove, 6 B. & C. 524- . _ - 270, 271 Saundorson v. Hanson, 3 C. & P. 314 - - - - 176 Scott V. Buckley, 16 L. T. N. S. 573- - - - - 221 Selby V. Greaves, L. E. 3 C. P. 594 ; 37 L. J. C. P. 251 ; 19 L. T. N. S. 186 - - - - - -5, 33, 35, 194 Sells V. Hoare, 8 M. & W. 451 ; 1 C. & P. 28 ; 1 Bing. 401 - 324, 339 Semayne's Case, 5 Co. Eep. 91 - - - - - 218 Seven v. Mihill, 1 Ld. Ken. 370 _ - - 143, 278, 285 Shaftesbury (Earl) v. Eussell, 3 D. & E. 84 ; 1 B. & C. 666- - 390 Shannon v. Shannon, 1 Sch. & Lef. 324 - - - - 345 Sharpe v. Fowle & Young, 12 Q. B. D. 385 ; 50 L. T. N. S. 758 ; 53 L. J. Q. B. 309 ; 32 W. E. 539 ; 48 J. P. 680 - - - 102 Shaw V. Earl of Jersey, L. E. 4 C. P. D. 120, 359; 44 L. J. C. P. 308 ----- - Sheape v. Culpepper, 1 Lev. 255 _ _ _ Sheffield and South Yorkshire Permanent liuilding Society v. Harrison, 15 Q. B. D. 358 ; 54 L. J. Q. B. 15 ; 51 L. T. 649 ------ - Shepherd v. Hills, 1 1 Exch. do - - - Sheriff v. James, 1 Bing. 341 ; 8 Moore, 334 Shipwick i\ Blanchard, 6 T. E. 298 - Shopland v. Eydler, Cro. Jac. 55, 98 - Shuttleworth, Ex parte, Eo Dean, 1 D. & C. 223 - Silkstone Coal Co., In re, L. E. 17 Ch. D. 158; 44 L. T. 405 ------ - Silvester v. Bedford. (See Bedford v. Wardens of Sutton Coldfield.) Simpkin v. Eobinson, 45 L. T. X. S. 221 - - - - 382 Simpson v. Hartopp, 1 Sm. L. C. 8th ed. 456 - 119, 120, 125, 128, 129, 130, 131, 139, 140 Simpson v. Eouth, 2 B. & C. 682 - - - - - 264 Simms v. Tuffs, 6 C. & P. 207 - - - - 226, 255 Singleton v. Williamson, 7 H. & N. 410 ; 31 L. J. Ex. 17 ; 5 L. T. N. S. 664 ; 8 Jur. N. S. 60 - - - - 304, 308 Six Carpenters' Case, Co. Litt. 146 ; 1 Sm. L. C. 8th ed. 143 - 230, 292, 393, 308, 314, 322, 326 Skeate v. Beale, 11 Ad. & E. 983 ; 9 L. J. Q. B. 233 ; 3 P. & D. 597 - - 308, 337 Skerry v. Preston, 2 Chit. Eep. 245 - - - - 284 Skidmore v. Booth, 6 C. & P. 777 - - - - - 223 Skingley v. Surridge, 1 1 M. & W. 503 ; 12 L. J. M. C. 122 - 375 (12 - 295 - 362 cty V. N. S. - 122 - 377 - 308 - 332 - 76 - 94, 100 N. S. 109, 111 Hi TABLE OF CASES CITED. PAGE Smallman v. Pollard, 6 M. & Q. 1001 ; 13 L. J. 0. P. 116; 1 D. & L. 901 - - - - - - - - 270 SmartlG i\ WilHams, 1 Salk. 246 ; 3 Lev. 387 - - - 88 Smith V. Adkins, 8 M. & W. 362 - - - - - 86 Smith V. Ashforth, 29 L. J. Ex. 259 - - 240, 330, 336, 340 Smith V. Barrett, 1 Sid. 162 - - - - - - 85 Smith V. Birmingham and Staffordshire Gas Co., 1 Ad. & Ell. 526 - - - - - - - 86, 214, 350 Smith V. Day, 2 M. & W. 684 ; M. & n. 135 ; 6 L. J. Ex. 219 - 41, 282 Smith V. Earr, 3 F. & F. 505 - - - - - 223 Smith V. Goodwin, 4 B. & Ad. 413 ; 1 N. & M. 371 ; 2 L. J. K. B. 192 ----- - 172, 288, 291, 292 Smith V. Malings, Cro. Jac. 160 - - - - - 22 Smith V. Mapleback, 1 T. E. 441 - - - - - 42 Smith V. Pearce, M. S. Sittings at Guildhall after M. T. 43 Geo. III.— Lord EUenborough, C.J. - - - - 175 Smith V. Eussell, 3 Taunt. 400 - - - - 142, 268, 274 Smith V. Torr, 3 F. & F. 505 - - - - 40, 290 Smith V. Wright, 6 H. & N. 821 ; 30 L. J. Ex. 313 - 235, 314 Smyth, Ex parte, 1 Swanst. 338, note (») - - - 21, 52 Snelgar I'. Henston, Cro. Jac. 611 - - - - 51 Snell V. Finch, 13 C. B. N. S. 651 ; 32 L. J. C. P. 117 ; 7 L. T. N. S. 747 - - - - - - 82, 90, 210, 362 SoUory v. Leaver, 21 L. T. N. S. 453 - - - - 67 South Kensington Co-operative Stores, Limited, In re, L. E. 17 Ch. D. 161 ; 44 L. T. N. S. 471 - - -106,108,109,111 Southampton (Lord) v. Brown, 6 B. & C. 718 - - - 12 Southwark Bridge Co. v. Sills, 2 C. & P. 371 - - - 85 Spencer v. Hanison, 2 C. & K. 429 - - - - 200 Spencer's Case, 5 Co. Eep. 17 - - - - - 3 Spice V. Webb, 2 Jui\ 943 - - - - - 226 Spragg ('. Hammond, 2 B. & B. 59 - - - - - 176 St. John's College, Oxford v. Murcott, 7 T. E. 259 - - 267 Stafford's Case, Dyer, 252 - - - - - - 56 Stafford (Earl of) v. Buckley, 2 Ves. Eep. 170 - - - 41 Stanfield f. Hicks, Lord Eaym. 280 - - - - - 172 Stanley v. Wharton, 9 Price, 301 ; 10 Price, 138- - 200, 204, 205 Stansfield v. Hellawell. 7 Exch. 373 ; 21 L. J. Ex. 148 - - 368 Staveley v. Alcock, 16 Q. B. 636; 20 L . J. Q. B. 320 ; 15 Jur. 628 - - - - - - - 41, 46, 48 Staveley v. Grundy, L. E. 22 Ch. D. 478 - - - - 99 Steadman v. Bates, 1 Lord Eaym. 64 - - - - 45 Steadman v. Page, 5 Mod. 141 ; 1 Salk. 390 - - - 45 TABLE OF CA.SK8 CITED. Hii PAGE Stevens v. Evans, 2 Burr. 11 u2 ----- 377 Stevenson v. Lombard, 2 East, 580 - - - - 22, 23 Stevenson v. Newnham, 13 C. B. 285 ; 22 L. J. C, P. 110 - 228, 340 Stevenson v. Wood, 5 Esp. 200 - - - - - 96 Stockton Iron Furnace Co., In re, L. E. 10 Ch. D. 335 ; 48 L. J. Ch. 417 ; 27 W. E. 433; 40 L. T. N. S. 19 - 93, 97, 100 Storey v. Eobinson, 6 T. E. 138 - - - - 139, 140, 301 Story V. Finnis, 6 Exch. 123 ; 2 L. M. & P. 198 - - - 313 Stoughton V. Leigh, 1 Taunt. 410 - - - -54 Straclian v. Thomas, 12 A. & E. 53G ; 4 P. & D. 229; 4 Jur. 1183 178, 180 Strafford (Earl of) v. Lady Wentworth, 1 P. Wms. 180; Prec. Ch. 555 - - - - - - __26 Stubbs V. Parsons, 3 B. & Aid. 516 - _ - 176, 285 Stukeley v. Butler, Hob. 172- - - - - - 46 Sturch V. Clarke, 2 B. & Ad. 113 ; 2 L. J. K. B. 9 - - 405 Sullivan v. Bishop, 2 C. & P. 359 - - - . . 39 Sutton V. Eees, 32 L. J. Ch. 437 ; 9 Jur. X. S. 456 - - 143 Swain v. Aji-es, 20 Q. B. D. 585 ; 21 Q. B. D. 289 ; 30 W. E. 798 9 Swann v. Earl of Falmouth, 4 Q. B. 123; 8 B. & C. 456; 2 M. «& E. 534 - - - - - - 225, 239 Sweeting V. Turner, L. E. 7 Q. B. 310; 41 L. J. Q. B. 52; 25 L. T. 796; 20 W. E. 185 - - - - - - 136 Sweetman v. Guest, L. E. 3 Q. B. 262 ; 37 L. J. IsL C. 59 ; 18 L. T. N. S. 52 - - - - - - - 375 Swii-e V. Leach, 18 C. B. N. S. 479 ; 34 L. J. C. P. 150; 11 L. T. N. S. 680 - - 136, 321 Swynerton v. Mills, Br. & G. 178 - - - - 182 Talentine v. Denton, Cro. Jac. Ill- - - --42 Tancred v. Leyland, 16 Q. B. 669 - - -171, 228, 340 Tanfield v. Eogers, Cro. Eliz. 340 - - - - - 171 TapHng v. Weston, 1 C. & E. 99 - - - - - 126 Tate V. Gleed, 1 M. & W. 647 ; 2 Wms. Saund. 290, n. (f) - - 127 Taunton, Ex parte, 1 Dowl. Eep. 54 - - - - 393 Taunton v. Costar, 7 T. E. 431 - - - - - 300 Taylerson v. Peters, 7 A. & E. 110 ; 2 N. & P. 622 ; W. W. & E. 644; 1 Jur. 497 - - - - - - 186 Taylor v. CaldweU, 3 B. & S. 826 ; 32 L. J. Q. B. 164 - - 9 liv TABLE OF CASES CITED. PAGE Taylor i\ Eastwood, 1 East, 212 - - - - - 310 Taylor v. Eckersley, L. E. 5 Ch. D. 740 ; 36 L. T. N. S. 442 ; 25 W. E. 527 - - - - - - - 100 Taylor v. Henniker, 12 Ad. & Ell. 488 ; 9 L. J. Q. B. 383-171, 228, 340 Taylor v. Lanyon, 6 Bing, 536 - - - 267, 26S, 269 Taylor v. Zamii'a, 6 Taunt. 524 - - - - -175 Tennant v. Field, 8 El. & Bl. 336 ; 27 L. J. Q. B. 33 ; 3 Jur. N. S. 1178 . _ - - - 226, 228, 229, 239, 294 Thercso & Co., Ee, W. N. 1879, p. 31 - - - 93, 105 Thomas v. Harris, 1 M. & G. 695 ; 9 L. J. C. P. 308 - 240, 294 Thomas i\ Mirehousc, 19 Q. B. D. 563 - - - - 276 Thomas v. Patent Lionite Co., L. E. 17 Ch. D. 250 ; 50 L. J. Ch. 544 ; 29 W. E. 596 ; 44 L. T. N. S. 392 - - 93, 105, 106, 108 Thomas Brown, Ex parte, L. E. 3 Q. B. D. 545 ; 47 L. J. M. C. 208 - - - - - - - - 408 Thompson v. Eield, Cro. Jac. 499 - - - - 164, 167 Thompson v. Jackson, 1 Man. & G. 242 - - - - 308 Thompson v. Mashiter, 1 Bing. 283; 8 Moore, 254 - 126, 134, 136 Thompson v. Ward, L. E. 6 C. P. 327, 360 - - - 158 Thompson v. Wood, 4 Q. B. 493 - - - - - 340 Thorn v. WooUcombe, 3 B. & Ad. 586 - - - 42, 282 Thornton v. Adams, 5 M. & S. 38 - - - - 200, 279 Thorp V. Hurt, W. N. 1886, p. 96 - - - 165, 184 Threr v. Barton, Moore, 94 - - - - - 40, 282 Thunder v. Belcher, 3 Ea-t, 450 - - - - 87, 92 Thurgood v. Eichardson, 4 0. & P. 481 ; 7 Bing. 428- 268, 273, 275 Thwaites v. Wilding, L. E. 11 Q. B. D. 421 ; 12 Q. B. D. 4; 52 L. J. a B. D. 734; 53 ibid. 1 ; 49 L. T. N. S. 201, 397 - - 161 Tidey v. Mollett, 16 C. B. N. S. 298 ; 33 L. J. C. P. 235- - 10 Till, Ex parte, Ee Mayhew, L. E. 16 Eq. 97 ; 42 L. J. Bkcy. 84 ; 21 W. E. 574 - 82, 94 Timmins v. Eowlinson, 3 Burr. 1603 ; 1 W. Bl. 533 - - 178 Tinckler v. Prentice, 4 Taunt. 549 - - - - - 164 Tolman r. Portberry, L. E. 6 Q. B. 245 ; 7 Q. B. 344 ; 40 L. J. Q. B. 125 ; 41 ibid. 98 - - - - - - 189 TomHnson v. Day, 2 B. & B. 680 - - - - - 22 Toms V. Luckett, 5 C. B. 23 ; 17 L. J. C. P. 27 - - - 159 Toplis V. Grane, 5 Bing. N. C. 636; 9 L. J. C. P. 180; 7 Scott, 620 .__--- 82, 214, 217 Townson (-. Tickoll, 3 B. & A. 31 - - - - 03 Tracey v. Talbot, 6 Mod. 214 - - - - - 1G9 Traders' North Staffordshire Carrying Co., In ro, L. E. 19 Eq. 60; 31 L. T. N. S. 716 104,106,108 TABLE OF CASES CITED. Iv PAGE Trappes v. Hartor, 2 Cr. & M. 177 - - - - - 122 Trent i-. Hunt, 9 Exch. 14 ; 17 Jur. 899; 22 L. J. Ex. 318 - 81, 90, 210, 228, 229, 362 Tresham's Case, 9 Co. Eep. 110b - - - - - 31-4 Tress v. Savage, 4 E. & B. 3G ; 23 L. J. Q. B. 339 - - 10 Trevanion's Case, 11 Mod. 32 - - - - - 313 Trcvillian V. Pino, 11 Mod. 112 - - - - 214,302 Tummons v. Ogle, 6 El. & Bl. 571 ; 25 L. J. Q. B. 403 - - 357 Turner v. Allday, 1 Tyr. & Gr. 819 - - - - IGG Turner v. Barnes, 2 B. & S. 435 ; 31 L. J. Q. B. 170 ; 10 W. R. 5G1 ; 9 Jur. N. S. 199 - - - 60, 88, 187 Turner v. Cameron, L. E. 5 Q. B. 30G; 29 L. J. Q. B. 125 ; 22 L. T. N. S. 525 10, 33, 123 Turner v. Ford, 15 M. & W. 212 ; 15 L. J. Ex. 215 - - - 313 Tui-ner v, Lee, Cro. Car. 471 - - - - - 58 Tui-ner v. Tiuner, 2 B. & B. Ill ; 4 Moore, 666 ; 1 Bro. Ch. Rep. 316 ------ 41, 358, 372 Tutter V. Fryer, Winch. 7 ; Dale's Rep. 42 - - - 185 Tutton V. Darke, 5 H. & N. 647 ; 29 L. J. Ex. 271 ; 2 L. T. N. S. 361 ------- 184, 221 Twells V. Colville, 2 AYils. 377 - - - - 273, 355 Tynemouth Union v. Overseers of Backwortli, 4 T. L. R. 492 - 381 U. Universal Disinfector Co., L. R. 20 Eq. 162 - - - 104 V. Valpy V. Manley, 1 C. B. 594 - - - - - 175 Yaspor v. Edwards, 1 Ld. Rayni. 719 ; 1 Salk. 248; 12 Mod. 662; Holt. 256 - - - - - -234, 235, 305, 306 Yaughan v. Davis, 1 Esp. 257 - - - - 200, 333 Yaughan v. Hancock, 3 C. B. 766 - - - - - 32 Yertue v. Beasley, 1 Moo. & R. 21 - - - - 293 Yigar v. Dedman, 24 L. T. N. S. 734 - - - - 373 Yigers V. Dean of St. Paul's, 14 Q. B. 909 - - - 52 Yincent v. Godson, 24 L. J. Ch. 122- - - . _ 32 Yitale, In re. Ex parte Young, 47 L. T. N. S. 480 - 37, 43 Yoisey, Ex parte, Re Knight, L. R. 21 Ch. D. 442 ; 52 L. J. Ch. 121 ; 47 L. T. N. S. 362 ; 31 W. R. 19 - - - 99, 100 Ivi TABLE OF CASKS CITED. w. PAGE Waddilove v. Barnet, 2 Bing. N. C. 538 - - - - 91 Wade V. Baker, 10 East, 495 ; 1 Ld. Eaym. 131 - _ - 76 Wade V. Marsh, Latch. 211 - - - - -13, 57 Wagstaffe v. Clarke, Camb. Sum. Ass. 182G- - - - 302 Wake V. Hall, L. E. 8 App. Cas. 195 ; 48 L. T. N. S. 839 - 122 Wakeman v. Lindsey, 14 Q. B. 625; 19 L. J. Q. B. 166 - - 227 Walker's Case, 3 Cro. Eep. 22 ; 1 Eoll. Eep. 331 ; Moore, 203 - 22 Wallace r. King, 1 H. Black. 13- - - - 251, 330 Waller r. Andrews, 3 M. & W. 312 - - - - - 284 Wallis V. He^s-et, Guildhall Sittings, H. Term, 59, 2 - - 377 Wallis V. Savill, 2 Lutw. 1532 - - - 68, 172, 173, 287 Walmsley v. lililne, 7 C. B. N. S. 115 - - - 122, 123 Walrond v. HaWkins, L. E. 10 C. P. 342 ; 44 L. J. C. P. 116 - 189 Walsh V. Lonsdale, L. E. 21 Ch. D. 9 - - - - 9 Walsh V. Eose, 6 Bing. 638 ; 4 M. & P. 484- - - 151, 284 Walsh V. Southwell, L. M. & P. 91 ; 6 Ex. 150; 20 L. J. M. C. 164 ------ - 386, 388 Walter v. Eumbold, 1 Ld. Eaym. 55 ; 4 Mod. 76 ; 1 Salk. 247 - 194, 227, 237, 254, 331 Ward V. Countess of Dudley, 57 L. T. N. S. 20 - - - 122 Ward V. Day, 4 B. & S. 337; 5 B. & S. 359; 33 L. J. Q. B. 3, 254- 30, 35, 189 Ward V. Haydon, Esp. 552 _ _ _ - - 332 Ward V. Henley, 1 Y. & J. 285 - - - - - 373 Ward I'. Shew, 9 Bing. 608; 2 M. & Scott, 756; 2 L. J. C. P. 58 - 79, 103, 207, 208 Ward V. Yentom, 2 Peake, 126 - - - - 332, 335 Warden and Commonalty of Sadler's Case, 4 Co. Eep. 56; Plowd. 227 ; 2 Yern. 714 - - - - - - 83 Waring v. Dewberry, 1 Stra. 97 - - - - 273, 274 Y^ashbotu-n v. Black, 11 East, 405 - - - - 239 Waterfall v. Penistone, 6 E. & B. 876; 28 L. J. Q. B. 100 - 122, 123 Waterman v. Yea, 2 Y^s. 41 - - - - - 372 Watson, Kipling & Co., In re, 49 L. T. N. S. 115 - - - 110 Watson V. Main, 3 Esp. 15 - - - - - 198 Y^atson V. Y'aud, 8 Exch. 339 ; 22 L. J. Ex. 161 - - 5, 30, 34 Y^itts V. Davis, 1 Selwyn, N. P. 676 - - - - 140 Watts r. Thomas, 1 Jur. 719 - - - - - 198 Weatherall and Comthopo, In re, 19 L. J. M. C. 1 15 - 103, 387 Weaver v. Price, 3 B. & Ad. 409 - - - - - 383 Y>bb >: Bell, 1 Yent. 36 ; 1 Sid. 440 - - - - 140 TA15LK OF CASES CITED. Ivi ni PAGE Wclby V. rhillips, 2 Vern. 129 167 Welch V. Myers, 4 Camp. 3G8 - - - - - 200 Wells V. Moody, 7 0. & P. 59 - - - - - 340 Wells V. Pearcy, 4 L. J. C. P. 144 - - - - - 65 Welsh V. Eoso, G Bing. G38 - - - - - 284 West Hartlepool Colliery Co., In re, 34 L. T. N. S. 568 - - 110 West V. Fritche, 3 Ex. 216 ; 18 L. J. Ex. 50 - - - 88 West V. Hedges, 6 M. & G. 1004; Barnes, 211 - - - 269 West V. LasccUes, Cro. Eliz. 851- - - - - 23 West V. Nibbs, 4 C. B. 172 ; 17 L. J. C. P. 150 - 200, 294, 308 Westbourne Grove Drapery Co., In re, L. E. 5 Ch. D. 248 - 105 Westwood V. Cowne, 1 Stark. 172 - - - - - 247 Wharton v. BlacknoU, 12 M. & W. 558 ; 13 L. J. Ex. 112 - 372 Wharton v. Naylor, 12 Q. B. 673; 6 D. & L. 136; 17 L. J. Q. B. 278 - _ - - - 142, 143, 266, 270 Wheeler v. Branscombe, 5 Q. B. 373; 13 L. J. Q. B. 83; D. & M. 406 - - - - - - - - 175 Wheeler v. Stevenson, 6 H. & N. 155 ; 30 L. J, Ex. 40 ; 3 L. T. N. S. 702 38, 192 White V. Binstead, 13 C. B. 304 - - - -270, 274, 279 White V. Greenish, 11 C. B. N. S. 209 ; 8 Jur. N. S. 563 - - 287 White V. Heywood, 5 T. L. E. 115 - - - - 202 White V. Smale, 22 Beav. 72 ; 26 Beav. 191 - - - - 80 Whiteheads. Taylor, 10 Ad. & Ell. 210; 2P. & D. 367 ; 9 L. J. Q. B. 65 ; 4 Jur. 247 - - - - 60, 214, 362 Whiteman v. King, 2 H. Bl. 4 - - - - 64, 300 Whitley v. Eoberts, McClel & You. 107 - - - - 50 Whitlock's Case, 8 Co. Eep. 70, 141 - - - - 13 Whitworth v. Maden, 2 C. & K. 517- - - - 248, 330 WHtworth V. Smith, 1 Moo. & Eob. 193 - - - 330, 340 Wickham v. Lee, 12 Q. B. 521 - - - - - 178 Wicks V. Dennis, 1 Lev. 190 - - - - - 182 WHcoxon V. Searby, 29 L. J. Ex. 154 - - - - 142 Wilde V. Waters, 16 C. B. 637 330 Wilder v. Speer, 8 Ad. & Ell. 547; 7 L. J. Q. B. 249; 3 N. & P. 536 - 234 Wilkinson v. Ibbett, 2 F. & F. 300 - - - - 151 Williams v. Hayward, 1 E. & E. 1040 ; 28 L. J. Q. B. 374 - 22, 42 Williams v. Holmes, 8 Exch. 861 ; 22 L. J. Ex. 283 ; 21 L. T. E. 64 - - - - - - 19, 135, 169 Williams V. Jones, 11 Ad. & Ell. 643 - - - - 333 Williams v. Lewsey, 8 Bing. 28; 1 M. & S. 92 - - - 271 WilHams v. Morris, 8 M. & W. 488 - - - - - 256 Williams v. Price, 3 B. & Ad. 695 : 1 L. J. K. B. 258 - 235, 306 Iviii TABLE OF CASES CITED. PAGE Williams v. Eoborts, 7 Exch. 618 - - - - 200, 201 WilHams v. Stivcn, 9 Q. B. 14; 15 L. J. Q. B. 321; 10 Jur. 804- 33, 38, 185 Williams, Ex parte, Ee Thompson, L. E. Y Ch. D. 138; 47 L. J. Bank. 26 ; 26 W. E. 274 ; 37 L. T. N. S. 764 - - 97, 100 Willis, In re, Ex parte Kennedy v. D'Eresby, 21 Q. B. D. 384 ; 58 L. T. N. S. 892 ; 59 L. T. N. S. 749 ; 4 T. L. E. 550 ; 36 W. E. 639, 793 . - - _ - - 101 Willis V. Eletcher, Cro. EHz. 530 - - - - - 301 WiUoughby v. Backhouse, 2 B. & 0. 823; 4 D. & Eyl. 539 - 324, 335 Wilmot V. Eose, 3 E. & B. 563 ; 23 L. J. Q. B. 281 - - - 255 Wilson IK Davenport, 5 C. & P. 531 - - - - 285 Wilson V. Duckett, 2 Mod. 61 - - - - - 138 Wilson V. Nightingale, 8 Q. B. 1034 ; 15 L. J. Q. B. 309- 227, 228 Wilton V. Dunn, 17 Q. B. 299 - - - - 88, 175 Wiltshear v. CottreU, 1 E. & B. 674 - - - - 122 Winter's Case, 2 EoU. Abr. 448 - - - - - 171 Winterboiu-ne v. Morgan, 11 East, 395 - - - 252, 328 Wintle V. Erceman, 11 A. & E. 547 - - - - - 269 Witty V. Wniiams, 12 W. E. 755 ; 10 L. T. N. S. 457 - 18, 170 Wood V. Clarke, 1 Cr. & J. 484; 1 Tyr. 315 ; 1 Price, 26 - 125, 126, 127, 150 Wood V. Hewett, 8 Q. B. 913 123 Wood V. Leadbitter, 13 M. & W. 838 - - - - 255 Wood V. Manley, 11 A. & E. 34 - - - - - 255 Wood V. Nunn, 5 Bing. 10 ; 2 M. & P. 27 ; 6 L. J. C. P. 198 - 225 Wood V. Tate, 2 New Eep. 247 - - - - - 85 Woodcock V. Titterton, 12 W. E. Q. B. 685 - - 179, 193 Woodcraft v. Thompson, 3 Lev. 48 - - - - 237, 334 Woodgate v. Knatchbull, 2 T. E. 154 - - - - 204 Woods V. Dui-rant, 16 M. & W. 149 ; 16 L. J. Ex. 313 - - 239 Woollaston v. Stafford, 15 C. B. 278 - - - - 289 WooUey v. Clark, 5 B. & Aid. 745, 748 - - - - 61 Wootley V. Gregory, 2 You. & J. 536 - - - 81, 210, 229 Wootten V. Harvey, 6 East, 75 - - - - - 404 Wormer v. Biggs, 2 C. & K. 31 - - - - - 305 Wray v. Earl of Egremont, 4 B. & Ad. 122 ; 2 L. J. K. B. 48 - 93 Wright V. Dewes, 1 Ad. & Ell. 641 ; 3 L. J. K. B. 181 - - 143 Yates V. Eastwood, 6 Exch. 805 ; 20 L. J. Ex. 303 - 263, 325 Yates V. Eatledgc, 5 n. & N. 249; 29 L. J. Ex. 117 - 269, 271, 275 TABLE OF CASES CITED. Hx PAGE Yates V. Tearle, 13 L. J. Q. B. 289 ; 6 Q. B. 282 ; 8 Jur. 774 - 320 Yeoman v. Ellison, L. E. 2 C. P. G81 ; 3G L. J. C. P. 32G ; 17 L. T. N. S. Gd - - - - - 30, 32, 35 Young V. Bromjiton, Chatliam & Gillingliain Waterworks Co., 1 B. & S. 675 ; 31 L. J. (i. B. 14 - - ^ - 354, 355 Young, Ex parte, In re Vitale, 47 L. T. N. S. 480 - - 37, 43 Z. Zoucli d. Ward v. Willingale, 1 n. Bl. 311 - - - - 190 TABLE OF STATUTES CITED. PAGE 25 Hen. III. c. 21 359 51 Hon. III. St. 4 U6, .'331, 334 52 Hen. III. c. 4 230, 334 c. 15.. 193, 195, 301, 322 c. 21 343 3 Hen. IV. ICa 349 13Edw. I. St. 1, c. 37 207 c. 2 343, 371 18 Edw. I. c.l 14, 17, 51 28 Edw. I. St. 3, c. 12 334 30 Edw. III. c. 27 299 46 Edw. III. 26, b. 7 220 2 Hen. VII. v. b 342 5 Hen. VII. ix. b 230 7 Hen. VIII. c. 4, s. 3 365 21 Hen. VIII. c. 19, s. 3 365 27 Hen. VIII. c. 10 7, 51, 69 32 Hen. VIII. c. 1 61 c. 28 52 c. 37, s. 1.. 55, 57, 59, 60, 63, 118 8. 3 78 s. 4 53, 57 1 & 2 Pb. & M. c. 12, s. 1 . . . . 236, 331 s. 2 262 s. 3 343 31 Eliz. c. 6 237 43 & 44 Eliz. c. 2, s. 4 374, 393 21 Jac. I. c. 4, s. 2 237 12 Car. 11. c. 24 76, 77 8. 5 19 17 Car. II. c. 7, s. 2 365, 366 8. 4 287 17 Car. II. c. 27 344 22 Car. II. c. 6, s. 79 84 2 Wm. & M. c. 5 . .125, 230, 238, 243, 244, 316 se.ss. 1, c. 5, s. 2 . . 162, 227, 242, 246, 249, 256, 262, 294, 307, 325, 331, 346, 347 sess. 1, c. 5, 8. 3 . . 138, 139, 241, 249, 337 sess. 1, c. 5, s. 4 . . 316 PAGE 2 Will. & M. sess. 1, c. 5, s. 5 . . 323 4 Anne, c. 16 20 8. 9 55 7 Anne, c. 12, s. 3 118 8. 6 118 8 Anne, c. 14.. 118, 163, 187, 188,189, 194, 202, 273, 274, 276, 281 8. 1 .... 142, 266, 267, 270, 278, 289 8 2 196 s. 6.. 53, 57, 185, 187, 188, 270 s. 7.. 53, 57, 185, 187, 188, 270 s. 8 267 4 Geo. II. c. 28. . 52, 53, 68, 238, 282 s. 5 .. 14, 15, 17, 20, 41, 62, 63, 85, 138 s. 6 43, 116 11 Geo. II. c. 19, s. 1 .. 139, 187, 196 8. 2 197 8. 3 202 s. 4 202 s. 5 203, 206 8. 7 197, 201 8. 8 .. 66, 123, 195, 241, 249, 329, 331, 337, 348 8. 10.. 238, 241, 262 8. 15 26 s. 18.... 38, 39, 177 s. 19.246, 307,326, 327, 338 8. 20 327, 334 s. 21 332 8. 23 343 17 Geo. II. 0. 38, s. 4 376 8. 7 376, 391 8. 11 375 24 Geo. II. c. 44, 8. 6 348, 405 22 Geo. III. c. 83, s. 8 391 33 Geo. III. 0. 54, s. 15 407 c. 55 396 s. 1 405 Ixii TABLE OF STATUTES CITED. PAGE 38 Geo. III. c. 5, s. 17 75 41 Geo. III. c. 23, s. 2 388, 391 s. 3 389 s. 8 389, 391 42 Geo. III. c. 90, s. 61 403 43 Geo. III. c. 99, s. 33 396 s. 37 276 54 Geo. III. c. 170, s. 12 . . . .378, 392 66 Geo. III. c. 50, s. 1 144, 273 s. 3 1-J4 S.6 144 57 Geo. III. c. 93. . 246, 256, 259, 262 s. 1 341 s. 2 257 s. 4 258 s. C ..209, 261, 331 69 Geo. III. 0. 12, s. 17 86 c. 86, s. 7 195 1 &2 Geo. IV. c. 23, s. 1 61 3 Geo. IV. c. 121, s. 41 408 4 Geo. IV. c. 95, s. 75 241 7 &8Geo. IV. c. 17 259 10 Geo. IV. c. 44 326 c. 56, s. 27 408 s. 28 407 1 & 2 Will. IV. 0. 41, s. 19 ....348 3 & 4 Will. IV. c. 27 49, 179 s. 2 .. 178, 179, 180 s. 34 179 s. 42 ,. 178, 180 c. 42, s. 3 178 s. 37 .. 58, 59, 78, 188 s. 38 .. 58, 188 s. 42 60 c. 74 52 4 & 5 Will. IV. 0. 22, s. 2 26 5 & 6 WiU. IV. c. 50 393 c. 59, s. 1 232 s. 4.. 233, 234, 307, 308 8. 5 231 s. 19 .... 234 6 &7WiU. IV. c. 71, s. 2 71 8.37 71 8.81 71 S.82.... 72, 73 s. 84 73 8.85 73 7 Will. IV. & 1 Vict. c. 26 76 c. 69 70 1 & 2 Vict. 0. 64 70 c. 106 86 2&3 Vict. c. 47, 8. 67 201 0. 62 70 s. 13 74 c, 71, 8. 39 163, 325 PAGE 2 & 3 Vict. 0. 93, s. 8 348 3 & 4 Vict. c. 16, s. 15 70, 74 4 & 5 Vict. c. 38 26 5 & 6 Vict. c. 54 70 c. 97, 8. 2 72, 317 6 & 7 Vict. 0. 23, 8. 2 7 c. 30, 8. 1 317 s. 2 319 s. 3 319 s. 4 319 c. 40, 8. 18 154 8. 19 154 0. 67, 8. 3 383 7 & 8 Vict. 0. 96, 8. 67 267 8 Vict. c. 18, 8. 119 26 8 & 9 Vict. c. 15, 8. 5 254 0. 20, s. 115 297 s. 116 297 c. 106, 8. 3 8, 10 8. 9 43, 117 9 & 10 Vict. c. 73 70 c. 95, 8. 96 146, 161, 163 8. 119.... 359. 360 10 & 11 Vict. c. 15, s. 14 155 c. 104 70 11 & 12 Vict. c. 14, s. IS 401 c. 43, s. 11 376 8. 17 411 s. 18 400 8. 19 399, 401, 402, 403 8. 20 402 8. 21 405, 406 8. 22 409 s. 23 409 8. 24 401 8. 26 400 8. 27 347, 404, 409, 410 8. 28 404 8. 29 406 s. 6-5 402 c. 44, 8. 3 407 8. 4 383 8. 6 384, 394 12 & 13 Vict. c. 14, 8. 1 385, 393 8. 2 386, 387 8. 3 382, 393 8. 4 382. 394 8. 6 378, 382 8. 6 388, 394 c. 45, 8. 5 347, 410 0. 49, 8. 1 26 c. 67 86 c. 92, s. 6 231 8. 6.. 232, 314, 315 13 & 14 Vict. c. 99 S93 TABLE OF STATUTES CITED. Ixiii 14 & 15 Vict. 15 & IG Vict. IG & 17 Vict. 17 & 18 Vict. 18 & 19 Vict. 19 & 20 Vict. 20 & 21 Vict. 21 & 22 Vict, 22 & 23 Vict, 23 «& 24 Vict, 24 & 25 Vict, 25 & 2G Vict 27 & 28 Vict, 30 & 31 Vict, 31 & 32 Vict, 32 & 33 Vict, 33 & 34 Vict, 34 & 35 Vict 35 & 3G Vict, PAGE c. 25, 8. 1..44, 186, 273 s. 2 .... 125. 143 c. 7G, s. 41 3G4 s. 210 190 s. 212 191 c. 70, s. 113 77 0. 32 26 c. CO, 8. 1.. 231, 232, 347 cc. 97 and 116 2G c. 13, 8. 129 77 c. 15, s. 12 15 8. M 15 0. 97, s. 5 28G 0. 108, s. 35 52 s. G3 351 s. 64 348 s. 75 .. 142, 278 c. 120, s. 35 52 0. 43 300 c. 73, s. 5 409 c. 35, s. 10 25 c. 93 70 c. 126, 8. 22 353 8. 23 3GG s. 24 3G6 c. 10, 8. 16 142, 279 c. 96 209 c. 82, s. 1 378 0. 89, s. 85 93, 104, 105, 106 s. 87.... 104, 105, 106, 111 s. 163 .. 104, 105, 106, 111 c. 102, s. 96 176 c. 181, s. 35 393 c. 59 196 c. 131 93 e. 142, 8. 13 150 c. 40 49 c. 122, s. 39 378 0. 41, 8. 18 376 c. 62, s. 4 410 8. 34.. 93, 94, 95, 97, 102 8. 42, 8ub-s. 1 94 c. 35, s. 1 26 ss. 2, 4, 7.... 27 c. 97 215 s. 38, siib-s. 1 245 sub-s. 2 245 c. 79 119, 130 s. 1 156 s. 2 157 8. 3 157 c. 50, 8. 3 .... 151, 153 8. 4 152 s. 5 152 PAGE 35 & 36 Vict. 0. 50, 8. 6 152 c. 92, 8. 13.... 243, 246 36 & 37 Vict. c. 42 70 c. 66, s. 24, sub-s. 7 321 8. 25, 8ub-8. 5 90 8. 34 280 37 & 38 Vict. c. S3 321 38 & 39 Vict. c. 57, 8. 1 178 c. 66 156 c. 77, 8. 10.. 93, 105,373 8. 25, sub-s. 8 295 39 & 40 Vict. 0. 17, ss. 3, 4, 5 . . 49 c. 61, 8. 31 386 40 & 41 Vict. c. 18 52 41 & 42 Vict. c. 31, s. 6 100 c. 42 70 42 & 43 Vict. c. 49, 8. 21 399 sub-s. 2 400 sub-s. 3 402 6. 31, sub-s. 2 207 8. 32 207 s. 39, sub-s. 4 404 s. 43, sub-s. 1 404 sub-s. 2 411 sub-s. 3 411 sub-s. 4 411 sub-s. 5 411 sub-s. 6 412 sub-s. 7 412 sub-s. 8 412 s. 47 375 0. 59 143 43 & 44 Vict. c. 19, 8. 86 395, 396 8. 87 396, 397 s. 8S 277 8. 89 397 8. 90 397 s. 105, sub-s. I.. 397, 398 sub-8. 3.. 397, 398 sub-s. 4.. 397, 398 44 & 45 Vict. c. 24, s. 5 412 c. 41 296 s. 10 24 sub-s. 2. 24 s. 14 9 s. 44 14, 42 sub- ss. 1,2 70 c. 59 287 8. 3 367 c. 75, 8. 1, sub-s. 2. 78 8.24 78 45 & 46 Vict. c. 38, s. 58, sub.s. 1 (i) and (vii) 52 c. 43, s. 14 382 c. 75 349 4G & 47 Vict. c. 52, s. 42 . . 82, 96, 99 sub-s. 1 93 Ixiv TABLE OF STATUTES CITED. PAGE 46 & 47 Vict. c. 52, s. 42, sub-s. 2 93 s. 44, sub-s. 2 (iii).. 100 s. 142 96 c. 61 210, 211 s. 44 180 s. 45 .... 145, 147 s. 46 149 s. 47 177 s. 48 150 s. 49 259, 260 s. 50 244, 260 s. 51 249, 251 s. 52 .... 210, 260 s. 64 180 47 & 48 Vict. c. 43 319 s. 4 258 49 & 50 Vict. c. 27, s. 4 76 51 & 52 Vict. c. 21 53, 259 s. 4.140, 145, 151, 162, 163, 188, 400 s. 5 .... 239, 256 s. 6.243, 249, 347 PAGE 51 & 52 Vict. c. 21, s. 7 .... 207, 210 s. 8, sub-s. 2. 256 s. 9 244 c. 43 150 s. 108 .. 352, 354, 372 s. 109 .. 353, 370, 373 s. 120 364 s. 123 364 s. 129 368 s. 130 369 s. 132 369 s. 133 359 s. 134 .. 344, 351 s. 135 .. 351, 364 s. 136 . . 352, 359 s. 137 .. 352, 368, 370 s. 147 .. 146, 151 s. 160 ., 142, 278 s. 188 .. 146, 151, 103 THE LAW OF DISTRESS. Pakt I. OF A DISTRESS FOR RENT. CHAPTER I. OF RENTS IN RELATION TO A DISTRESS. Sect. I. — Of Itents (jonoyalhj. It is not oiir intention to discuss at any length tlie origin Origin of of rent. Suffice it to say tliat, like the means of its re- "^ ' coverj by distress, it can be traced to the ancient system of English tenures, when land was generally held by mili- tary service {a). It is well known that after the Norman Conquest a large proportion of om' territory was appropriated by the Conqueror and distributed amongst his followers, and, as a retm'n, he required them to hold these gifts, or feuds, as they were called, subject to the performance of certain military duties as the condition of their enjoyment ih). The feudatories, being under frequent incapacities of cul- tivating their own lands, in time found themselves obliged to commit part of them to inferior tenants. Hence arose subinfeudation, which was nothing more than an imitation Subinfeuda- by the inferior lords of the tenures under which their *^°^' superiors held, by carxing out and granting to others still («) 2 Bl. Com. 57; Bullen, {b) iHaUam's Middle Ages, p. 17. 178, 179, n. RENTS GENERALLY. Part I. Chap. I. Definition of rent- Essentials of a rent. (a) Must always be a profit. (b) Need not be in money. more minute estates, to be held as of themselves ; at the same time reserving such services as would remunerate them for those which they were liable to render to their superiors. These services, which were of a base kind, con- sisted of returns, or rcditus, of corn, cattle, or money, and were the origin of rent (c) . The word rent, or render {redifiis), signifies a compensa- tion or return, it being in the nature of an acknowledgment given for the possession of some corporeal inheritance {d). It is defined to be " a certain profit issuing yearly out of lands and tenements corporeal," and may be regarded as of a twofold natiu'e — first, as something issuing out of the land in resj)ect of which it is granted or reserved ; and secondly, as an acknowledgment made by the tenant to the lord of his fealty or tenm-e (e). Rent must always be a profit ; yet there is no occasion for it to be, as it usually is, a sum of money ; for spurs, capons, horses, corn, and other matters, may be, and occa- sionally are, rendered by way of rent (/) ; it may also consist in services and manual operations ; as to plough so many acres of ground, and the like; which services, in the eye of the law, are profits. So, where a tenant holds pre- mises by the service of cleaning the parish chm-ch, without any pecuniary render, such service is " a roif," for which a distress may be made. So, also, the service under the like circumstances of ringing the church bell at stated hours from Michaelmas to Christmas (g). But in such case the distress cannot be sold. (c) 2 Bl. Com. 57. (rf) Kerr's Corns, vol. 2, p. 35. (e) Bradby, 24; 2 BL Com. 41; Co. Litt. 142 a; Gilb. Eents, 9 ; Smith, L. & T. 1 1 1, 2nd ed. (/) 1 Inst. 142 a. {(/) Doc d. Edncy v. Billett, 7 Q. B. 976 ; Boc d. Rohinson V. Ilhde, 2 Moo. & E. 441 (holding lauds by the service of keeping uj) a grindstone for the convenience of a parish) ; The Duke of Marl- borough V. Osborn, 5 B. & S. 67 (team work) ; Lanyon v. Came, 2 Saund. 165 ; Smith, L. &T. Ill, 112, 2nded. EENTS GENERALLY. Hent must issue out of the land, and not be part of the Part I. land itself ; so that grass, herbage, or other vestm-e, cannot Chap. I. properly constitute a rent, because they are j)art of the (c) Must issue thing demised (h). In the case of mines, however, it seems °i^.* ^^^^^ " ^ ' _ _ ' ; ^ thing' dc- that a rent may consist of a portion of the ore, which is the mised. substance of the land itself (/) . As avc have observed, it is _(d) Cannot necessary that rent should issue out of lands and tenements anlncorporeal corporeal ; that is, " from some inheritance whereunto the hereditament, owner of the rent may have recom'se to distrain " (Z) . Consequently, it cannot issue out of a piscary, common, franchise, or other incorporeal hereditament (/) ; and the agreement of the parties cannot alter the law in this respect {»i) ; nor can it issue out of a rent itself (n), a hundred, fair, or advowson {ui), nor out of a personal chattel (o). But rent reserved on a lease of land with Furnished stock upon it, or on the demise of a ready furnished house, ^^"^oings. or lodgings, can be distrained for, because, in contempla- tion of law, the whole rent issues out of the land or pre- mises demised (p). The produce of land, however, such as vestm-e or herbage, is so far of a corporeal natm-e, that it enables the person entitled to the rent to enter and distrain cattle upon the land (q) . An exception to this rule oecm^s in the case of the Except in the Crown, which, by its prerogative, is entitled to distrain Cro*wTi. ° on all the lauds of the lessee ; whereas a subject can only distrain upon the land demised (>•). (A) Co. Litt. 47 a, 142 a; 23; Bullen, 19. GHb. Eents, 26. («) 2 Eoll. Abr. 446. ({) CampbeUy. Leac/i, Amh. (o) Spencer^ s case, 5 Co. 740; Buckley v. Kenyan, 10 Eep. 17. East, 139; R. v. E. Fomfret, {p') NeiomanY. Anclerton,2 5 M. & S. 139; but see also NewEep. 224; Brad. 26. See R. V. Inhabitants of St. Anstell, also Robinson v. Learoyd, 7 M. 5 B. & A. 693. & AV. 48 ; Brad. 16. {k) Gilb. Eents, 20 ; Co. Litt. {q) Co. Litt. 47 a. 47 a, 144 a. (/•) Co. Litt. 47 a; Bac.Abr. {I) Co. Litt. 47 a, 144 a. Eent (B.) ; Knight's case, Co. {m) Butt's case, 7 Co. Eep. Eep.54; Lord Moimtjoy's case, b2 certain 4 RENTS GENERALLY. Part I. Rent must also issue yearly ; though there is no occa- Chap. I. sion for it to issue every successive year ; for it may be (e) Must issue reserved every second, third, or fourth year ; hut, as it is yearly. ^^ I^q produced out of the profits of lands and tenements, as a recompense for being permitted to hold and enjoy them, it ought in general to be reserved yearly, because those profits annually arise, and are annually renewed. (f) Must be As it is necessary that rent should be reserved out of a corporeal hereditament, so it is essential to the nature of a rent or service that it be certain in its quantity, extent, and time of payment — or that which may be reduced to a certainty by either i^arty (s), for " id cerium est quod certum reddi potesV {{). In some cases there maybe "a certainty in uncertainty ; " as a man may hold of his lord to shear all the sheej) depastuiing within his lord's manor; and this is certain enough, although the lord has some- times a great, and sometimes a small number therein {^i). So where the proprietor of a house, marl-pit, and brick mine, demised the house by unwritten agreement to a tenant from a clay named ; and it was at the same time agreed between them that the tenant should take the marl- pit, and brick mine, and should pay quarterly a certain sum for what he got out of it; and the tenant having taken the marl and made bricks, and paid the stipiulated amount for a certain time, fell into arrear ; the Court held that the agreement for the marl-pit and brick mine was a demise of the land from year to year at a rent capable of being ascertained ivith certainty, and for which, therefore, 5 Rep. 4 ; Bro.Abr. Distresses, v. Curteene, Cro. Jac. 4.52; pi. 49. Where also a rent is Croom v. Talbot, Comb. 238 ; reserved upon an entire de- Newman v. Anderton^ 2 New raise of land and tithes, it R. 224. seems that, although it be en- {s) Co. Litt. 96 a. tire as to render, yet, as to the (^) Orhy v. Molmn, 2 Vern. remedy, it issues out of the 531, 542; Co. Litt. 96 a. land alone, and is distrain- [xi) Co. Litt. 96 a. able accordingly. Douhitofte RENTS GENERALLY. ^ the lessor might distrain (x). And a royalty payable to a Part I. landlord upon the bricks wliicli are made out of a brick- Chap. I. field is a rent certain, although it is not paid for the renewing produce of the land, but for portions of the land itself, wliich is gradually exhausted by the working (//). But where, by an indontiu-e of demise, there was a stipula- tion that the tenant should not sell hay off the premises, under a penalty of 2s. Gd. per yard of the hay so sold, to be recovered by distress, as for rent in arrear ; it was held by the Court of Exchequer Chamber that the legal opera- tion of this demise was to create a penalty, recoverable by distress, as for rent, but not a rent(~). And where the owner of a factory let " standings " in some of his rooms for lace machines, he himself supplying the steam power by which they were put in motion ; it was held that there was no demise of the room, and consequently that the w^eekly payments reserved could not be distrained for as " rent " {a) ; though in a somewhat similar case, where the owner of lace machines hii-ed a portion of a room in a factory, and this portion was divided from the rest of the room hij a partition, and the owner of the machines kept the key, it was held that there w^as a sufficient demise to entitle the landlord to distrain (b). On the other hand, it has been held, that where a lease of tithes and land was granted at an entu-e rent, and was void as to the tithes, because not under seal, a distress was altogether unlawful, because no distinct rent was due for the land (c). And therefore a rent reserved after the rate of 18/. per year was held bad for uncei'tainty, in not specifying the nature of (x) Daniel v. Grade, 6 Q. B. B. 949. 145. See judgment in JFa^-so/j («) Hancock v. Austin, 14 v. Waud, 8 Ex. at p. 339 ; C. B. N. S. 634. Edmojids v. Eastwood, 2 H. & {h) Selby v. Graves, L. E. N. 826. 3 C. P. 594. (y) Reg. V. Westhrooh, 10 (c) Gardiner Y. Williamson, Q. B. 178. 2 B. & Ad. 336; Neale r. (z) Pollitt V. Forrest, 11 Q. Mackenzie, 1 M. & W. 747. Tart I. Chap. I. SEVERAL KINDS OF RENT. tlie rent, whetlier in money or in kind, nor the periods of its j)ayment {(/). For the same reason the lord formerly could not distrain upon a tenant in frankalmoign, hecause his duty was to perform divine ser^dces, uncertain both in time and number (e) . (a) Rent- service. Origin of. Distress inci- dent of com- mon right. Sect. II. — 0/f/ic sercml Kimh of Rent. Having now shortly discussed the origin and nature of rent, and the common requisites which are necessary for its existence, in so far as it affects the law of distress, we will proceed to examine the different kinds of rent which are met with at common law, though tlie distinctions which used to exist are not now of such importance. There are at common law three distinct kinds of rent, namely, TQwi-service, veni-c/iarge, and rent-sft7.' (/). Ilent-ser\dce was created wliere the tenant held land of his lord "by fealty, and a certain rent, or by a certain rent, together with homage, fealty, or other services" (fj). It was called rent-service, because it had some corporal ser^ice, as fealty at the least, belonging to it {//). And to rent-service distress was incident of common right, whether such rent were created by deed or parol (/), provided that the reversion were in the landlord, or lessor, making the distress [It). The copyhold rents paid by the tenants of a manor to the lord for their tenements holden by copy of court roll, ha"sdng fealty incident to them, are in their very nature rent-service (/). (f/) Parker v. Harris, 4 Mod. 78. (e) Litt. s. 136. (/) Bac. Abr. Kent, (A) ; Smith, L. & T. 112, 114, 2nd ed. (y) Litt. s. 213. (h) Co. Litt. 142 a. (/) Litt. s. 214. (A-) Litt. s. 215 a; Co. Litt. 143 a. (Z) LaxKjhcr v. Humphrey, Cro. Eliz. 524. As to rent reserved M^axi a tenancy at will, see Humerton v. Stead, 3 B. cS: C. 483; Kniyht v. Ben- SEVERAL KINDS OF RENT. 7 It is essential to the nature of a rent-service that it he Part I. reserved on a sufficient conveyance ; that is, upon some Chap. I. demise or grant, either passing an estate to the tenant, or Essentials of enlarging an estate already in him (;;?). For although a rent-service. a reservation may he made either hy an indeutm^e or hy ^^^^^ ^^ ^®' ■^ ... . served on a deed poll, or by parol even (if within the exception of the sufficient Statute of Frauds), provided an estate — either in posses- ^^^'^^J^^'^®- sion, reversion, or remainder — ho made to pass to the tenant, yet any reservation in a deed, by which no estate passes, is void ; although a right, without an estate, may pass by the same deed {n) . At common law a rent could not be reserved upon a bargain and sale, because only a use, and no estate in the land, passed by such conveyance. But now, by the Statute of Uses (o), the possession being executed to the use, the bargainor may distrain for the rent (p). An agreement for a futiu'e lease at a certain rent, under Agreements which a tenant takes possession, no lease being in fact i^ases*"^^ executed, and no other circumstances existing under which a demise of any estate, or any consequent tenancy, can be implied, is not a sufficient reservation of rent to give the proposed lessor a right to distrain (q) . Thus, where a tenant was in possession under a memorandum of agree- ment to let on lease, with a purchasing clause for twenty- one years at a net clear rent of 63/., the tenant being allowed to enter at any time on or before a particular day ; it was held that this only amounted to an agreement for a future lease, and that, no lease having been executed, and no rent subsequently paid, the landlord was not entitled to nett, 3 Bing. 361 ; Bullen, 20, enfranchised copyholds were note. Eent granted in cou- parcel. sideration of the enfranchise- (m) Co. Litt. 144a; Bac. ments of copyholds by virtue Abr. E.ent(C). of 6 & 7 Vict. e. 23, s. 2, is (n) Bac. Abr. Eont (C) ; expressly declared to be rent- Bradb}', 18. service, and to he parcel of, (o) 27 Hen. 8, c. 10. and appendant and appurte- (p) Co. Litt. 144 a. nant to, the manor of which the (jing under an executory agreement for a lease is only made tenant from year to year at law by the payment of rent ; but that he is to be treated in every Com-t as holding on the terms of the agreement : and therefore that a person holding under an agreement is subject to the same rights of distress as if a lease had been granted, and if under the terms of the lease a year's rent would have been payable in advance on demand, a distress for that is lawful (.r) . The above case has been recently reviewed in the case of Sun in v. Ay res (//), where an agree- ment was made that a tenant was to expend a certain sum of money in repairs on the demised premises, and that when such repairs were done a lease should be executed. No lease, however, was executed, and it was held that the agreement did not constitute a "lease " mthin the meaning of sect. 14 of the Conveyancing and Law of Property Act, 1881, and therefore that forfeitm-e could be enforced with- out serving upon the tenant the notice required by the above section. The real question in such cases is whether the paities intended to create a tenancy before the execution of any f LQ-ther instrument. An instrmnent containing an express pro\dso that it shall not operate as a lease, but only as an agreement, will be construed to be a mere agreement, not- withstanding that it contains words of present demise (s). The usual words of demise are " demise lease and to farm let." But any other words which are sufficient to explain the intention of the parties, that the one shall divest him- self of the exclusive {a) possession, and the other assimie it for a determinate time, whether such words run in the form (x) Walsh V. Lonsdale, L. & P. 360. E.'21 Ch. D. 9. («) R. V. Morrish, 32 L. J. (y) L. E. 20 Q. B. D. 585 ; M. C. 245 ; Taylor v. Cald- 21 Q. B. D. 289. ivell, 3 B. & S. 826 ; Handcock (z) Perriny v. Brook, 7 C. v. Austin, 14 C. B. N. S. 634. 10 SEVERAL KINDS OF KENT. Part I. of a licence, covenant, or agreement, are of themselves Chap. I. sufficient, and will in construction of law amount to a demise. The leaning of the Comis now seems to he to construe writings not under seal, which cannot, hy reason of the 8 & 9 Yict. c. 106, operate as leases, as agreements, in order to carry out the intention of the parties [h] . If any douhts arise on the instrimient the conduct of the parties may be referred to, in order to explain their inten- tion (c) . And even where the tenant only enters under an agreement for a lease, the subsequent circumstances may be looked to, in order to ascertain whether an actual tenancy has been constituted. Thus, in the case of Martin v. Smith ((/), where, by an agreement not under seal, the plaintiff agreed to let to the defendant, and the defendant to take of the plaintiff a house and premises for seven years, upon the terms, inter alia, " that the defendant would, in the last year of the term, do certain paintings and whitewashings," and the defendant entered under the agreement, occupied and paid rent for the whole of the seven years ; it was held that the stipulation as to paint- ing, &c., was applicable to a tenancy from year to year, and that his occupying under the agreement amounted to a promise that if he should continue to occupy for the whole term, he should perform what was stipidated in such agreement (e) . In another case A. agreed in writing to let a farm to B. The agreement reserved a rent payable at stated intervals, and provided that A. should put the premises in repair. B. alleged that, prior to the agreement being signed, A. (b) Sm. L. & T. 3rd ed. Pearson \. Ries, 8 Bing. 181 ; p. 97 ; L. E. 9 Ex. 50 ; Tidpi/ lioe v. Ashburncr, 5 T. E. 163 ; V. 3IotleU, 16 C. B. N. S. 298 ; BuUen, 23. 3fartin v. Smith, L. E. 9 Ex. {d) L. E. 9 Ex. 50. 50. (e) SeealsoTtirnerY. Came- (c) Chapman v. Bluch, 4 ?-o«, L. E. 5 Q. B. 306; Pf/;-A-er Biug. N. 0. 187; Cox v. Bent, v. Taswell, 2 De G. & J. 559 ; 5 Biug. 185 ; Knight v. Ben- Tress v. Savage^ 4 E. & B. 36. nett, 3 Binff. 361 ; Doe d. SEVERAL KINDS OF RENT. IL promised verbally that if B. would take the farm, the Part I. buildings should be put into a thorough state of repair, and Chap. I. that no rent should be demanded until this was done, and that on the faith of this promise B. took the farm. A. afterwards mortgaged the premises to C, who gave B. notice of the mortgage, and that the principal and interest were in arrear, and directed him to -pay the rent to C. B. then set up the alleged collateral agreement of which 0. was previously unaware. C, after notice, distrained for the rent reserved by the unwritten agreement, and due before and after the date of his mortgage. In an action by B, against C. for an injunction to restrain him from holding or selling the goods, and for damages for im- properly distraining, and against A. and C. for specific performance of the written agreement, and the alleged parol agreement, Malins, Y.-C, on the motion of the plaintiff, and subject to certain terms, granted an inter- locutory injunction, restraining C. from remaining in possession, and from selling for a certain time. It was held that the injunction ought not to have been granted ; for that, assuming that the parol agreement existed, the mortgagee of the reversion, without notice, was not bound by it. Senibic, that a court of equity will not interfere with the legal right of distraint by the owner of the rever- sion for the rent due to him on the contract of tenancy, even where the distraint is for more money than is due as rent (/). It must be observed that rent can only be reserved to To whom and the lessor himself, and not to a stranger ((j), the reason ferric ^^^*"t being that it is a compensation for the laud, and should be be reserved. reserved to the person who would have had the land if it -^^^^ ™"*^* ^® had not been demised (A). It must also be reserved con- the lessor himself. (/) Carter v. Salmon, 43 (B.), 5. L. T. N. S. 490. (/*) Sm. L. & T. 3rd ed. 127; {g) Litt. s. 346; Co. Litt. Gilb. Rents, 61. 214; Com. Dig. tit. " Eeut " 12 SEVEEAL KINDS OF RENT. Part I. Chap. I. But not to a stranger. Must be re- served con- formably to the nature of the estate. Improper reservations. formally to tlie natiu-e of the estate ; for in some cases a bad reservation will destroy the rent. So, where a lease for years was made by a tenant in fee simple, and his son, who was his heir apparent, to commence after the death of the father, reserving rent to the son " by name," but not reserving it to the "heir" or heirs of the father; it was held that the son could not take the rent, although it turned out that he teas heir, and would have been entitled to it had it been reserved in proper form ; for a reservation to the son by his "proper name," and not to him as " heir," is the same as if it was to a stranger (/). An improper reservation, however, will not in general destroy the rent, for " the law uses all imaginable industry to conform the reservation to the estate" (/). Thus, if a lessee for 100 years should underlet for 50 years, reserving a rent for him and his heirs dm-ing the term, this rent, it seems, will go to the executor (Z-) . Or, if a rent-charge for years be granted to a man and his heirs, it will go to his exe- cutors (/) . Where by a lease rent was reserved to a person, not a partij to the lease, and the lessees covenanted with him and the lessors to pay rent, it was held that he could not join with the lessors in an action of covenant for non-pay- ment of the rent {m). If a tenant in tail make a lease, and reserve the rent generally to his heu-s, it will go to his heii"s in tail («) ; and if two joint tenants demise by parol or deed-poll, reserving rent to oue of them, it will eniu'e to both (o). And if a rent-charge be granted out of gavel- (/) Oates V. Frith, Hob. Eep. 130; Co. Litt. 47 a, 143 b; Com. Dig. tit. "Eent" (B.), 5. See alsoZ)oe d. Barhcr V. Laicrence^ 4 Taunt. 23 ; Chethani v. Williamson, 4 East, 469 ; Moore v. Earl of Plij- mouth, 3 B. & Aid. 66. (j) Per Lord Hale, Sache- verell v. Frog ate, 1 Yeut. 1 62 ; Gilb. on Rents, 59. (A-) Sacheverell v. Frogate, 1 Yent. 162; Bullen, 25. (/) Darrell v. Wilson, Cro. Eliz. 644. (?«) Lord Soutluonpton v. Brown, 6 B. & C. 718. (») Sacheverell v. Frogate, Slip. (o) Co. Litt. 47 a. It seems that the Crown is entitled to reserve a rent to a stranger. Bradbv, 18. SEVERAL KINDS OF RENT. 13 kind lands to a man and his heirs, it will descend accord- Part I. ing to the natiu^e of the land (;>>). Where there is no Chap. I. specification of the persons to whom the rent is to be pay- able, it will by law enure according to the nature of the estate {q). But where there is a specific reservation of the rent to the lessor, •without naming any other persons as heirs or executors to whom it shall be paid afterwards, it will bo confined to the person to whom it is so reserved, and will cease altogether at his death; for '^cxpressumfacit cessare taciturn " (r), unless it be reserved payable " dming the term," in which case this express evidence of the lessor's intention that the payment of rent should be com- mensurate in duration with the continuance of the term, will preserve the rent to the end, and the law will dis- tribute it according to the nature of the estate (s) . When there is any doubt as to the person to whom the Reservation in J. 11T1 Til 1 j_ 1 Pi - case of doubt. reservation should be made, the clearest and safest way is to reserve the rent generally during the term {icithout saying to whom), and leave it to be distributed by the law in the mode pointed out in Whit lock's case {t). For if the reser- vation of rent be general, the law directs it to be paid according to the intent and the nature of the thing demised. In such case the rent is carried over to the per- son who would have succeeded to the estate if no such lease had been made (»). It seems that where the reserva- tion is to a stranger, although the payment reserved is not properly speaking a rent, and at common law cannot be distrained for, yet such a reservation is binding as a con- tract (.r). And if such a reservation comes within the {])) Randall v. Jenkins, 1 («) Sacheverell\. Frogate, 1 Mod. Eep. 110; Bradby, 19; Yent.162; BuUen,26; Bradby, BuUen, 25. 20. {q) Shep.Touch.114; Sache- {t) 8 Co. E. 70, 141. verell y. Frogate, sup. (u) Gilb. Bent, 64, 71; (r) CotherY.3Ierrick,B.aTd. Wood. L. & T. 10th ed. 344. 95. {x) JeiveVs case, 5 Hop. 3 ; Sm. L. & T. 3rd ed. 128. 14 SEVERAL KINDS OF RENT. Part I. statute 44 & 45 Yict. c. 41, s. 44 (th.e Conveyauclng and Chap. I. Law of Property Act, 1881), the stranger will be entitled Convcyancino- to distrain when the pajTnent is in arrear for twenty-one Act, 1881. clays. By that Act it is provided that — " any annual sum payable half-yearly, or otherwise, whether charged on the land, or on the income of the land, and whether by way of rent-charge or otherwise, not being rent incident to a reversion, may be distrained for if twenty-one days in arrear, unless an intention contrary to such a power is expressed in tlie instrument under which the annual sum arises" (^). But this section applies ouly where the instrument comes into operation after the 31st of Decem- ber, 1881. Must be inci- It is necessaiy for the existence of a rent- service that reversiou. the person to whom it is payable should be entitled to the reversion (;:). Originally a rent-service might have been reserved upon a conveyance of lands from one man to another in fee simple, or for any lesser estate {a) ; but by QuiaEmptores. w^q statute of Quia Empfores [b) upon a grant of land in fee simple the grantee holds not of the grantor, but of the person of whom the grantor himself held ; therefore a rent- ser\ice cannot now be reserved upon a grant of lands from one subject to another in fee simple ; because it is inci- dental to tenm-e, and there is now no tenure between the grantee under such a conveyance and the grantor. If such a rent were created at the present day without a power of distress, it woidd be a roit-seeJc, and a power of distress would accordingly be conferred by the statute 4 Greo. 11. c. 28 (c). But a rent-ser\ice may be reserved upon the grant of a lesser estate. (b) Rent- The next species of rent which we will treat of is a rent- TT ° '. ri ^ charge, which is created either by grant, where the owner (y) Sect. 44. (a) These are now called {z) Litt. s. 215; Co. Litt. " quit rents," ^/jos^;, p. 17. 142 b, 143 a. {b) 18 Edw. 1, c. 1. (c) See post, p. 20. SEVERAL KINDS OF RENT. 15 of land by deed grants a yearly rent to be issuing out of Part I. the same land to another in foe, or for life, or years, with Chap. I. a clause in the deed empowering tlie grantee, or his heir, to distrain, if the rent be in arrcar ; or by rescrration, as where a man conveys away his estate, leaving no rever- sion in himself, and reserves to himself and his heirs a certain rent with a clause of distress {d). This was called Why so a rent-c/iarr/c, because the land is liable to the distress not of common right, but by virtue of the clause in the deed (e). A rent-charge cannot continue longer than the estate of the grantor ; but if he is seised in fee simj)le, he may make a grant of such a rent for any estate he pleases, as for a term of years, for life or lives, in tail, or in fee sim2)le (/). As a rent-charge is a separate incorporeal hereditament, a deed is necessary, unless it be created by will. Formerly rent-charges were requii'cd to be enrolled; Enrolment but now it is provided by the statute 18 & 19 Yict. c. 15, necTssary. ss. 12, 14, that, after the 26th of April, 1855, they shall Registration, not affect the lands, unless they are registered as in the Act mentioned. An exception occurs in the case of rent- charges created by marriage settlement, or v^ill, for a life or lives, or for any estate determinable on a life or lives. A grant in fee reserving a per^^etual rent, with an express power of distress, is good as a rent-charge {g) . As we have said above, if such a rent were created at the present day, without a power of distress, it would apparently be a rent- seek, and as such attended with the right of distress under the statute 4 Geo. II. c. 28. In ancient times it was neces- sary to give an express power to the grantee to distrain on the premises out of which the rent-charge was to issue. {d) Litt. s. 218. E. P. 12th ed. 330. (e) Litt. s. 217; Bradhunj {cj) Co. Litt. 143 b, note 5 ; \.Wri(jht,2T)ox\g.&2^; Jemott and see judgment of BiiUer, V. Cowley, 1 Saiind. 113. J., in Bradbury v. Wriyht, 2 (/) Litt. ss. 217, 218; Wms. Doug. 624. 16 SEVERAL KINDS OF RENT. Part I. Chap. I. (c) Rent-seek. Definition, Why so called. How it differs from a rent-charge. Severance from the reversion. (d) Fee-farm rent. But this is now provided for by the hist-mentioned statute, which gives a power of distress to rents-seek {//). Rent-seek {rcdditus siccus), or barren rent, like a rent- charge, is created by grant or reservation, and arises where a rent is granted by deed or will, to be issuing out of certain lands, without any clause of distress (/), or where a man reserves a rent to himself and his heirs on the aliena- tion of his whole estate, without any such power of dis- tress (/r). It was called reni-seck because no distress could formerly be made for it (/) ; and the only way in which it differs from a rent-charge is, that no distress is charged upon the land out of which it issues. The separation of the reut from the reversion had in many cases the effect of reducing a rent-service to a rent-seek. Thus if a man granted to another a rent-service by deed, reserving to himself the reversion, and the tenant attorned to the grantee ; or if the rent were separated from the fealty or other services ; such rent was in the hands of the grantee only a rent-seek {ni) . And if the lord attempted to convey his rent independently of the reversion to which it was incident, the grant would have been effectual to deprive himself of the rent, but not to enable his grantee to dis- train for it {ii). There are some other species of ancient rents besides those which we have ah-eady considered, such as fee-farm rents, rents of assize, and chief rents. These rents, though strictly comprised within one or other of the preceding divisions, are yet known by particular names; but with relation to the remedy of distress, all rents, of whatever 42. (A) Post, (0 Litt. p. 20. s. 218; 2 Bl. Com. (A-) Litt. s. 217. [l) Litt. s. 218. (m) Litt. ss. 225, 228 ; Co. Litt. 150 b, 153 a, lG4b. (n) Litt. ss. 225—228 ; Bradby, 20. (As to whether a rent-seek can issue out of a mere chattel, see BuUen, App. A.) SEVERAL KINDS OF RENT. 17 deserijjtion, are reducible to one or other of the ahove divi- Part. I. sions, namely, rent-service, rent-charge, or rent-seek. Chap. I. A. fee-farm rent is a rent reserved on a conveyance of Definition, lands in fee simj^le, the name being founded on the per- petuity of the farm or rent, and not on the amount (o) . If created before the Statute of Quia Einpfores {p), such a Effect of rent seems to be a rent-service with fealty attached to it{q). "^ '"^ ^^^** If created after that statute, it seems to be in the natui'e of a rent- charge, if reserved with a clause of distress, and a rent-seek, if reserved without it(r). So that if created in modern times, distress would only be incident to the latter kind of rent under the statute 4 Geo. II. c. 28. Rents of assize are, " the certain established rents of the (e) Rents of freeholders and ancient copyholders of a manor, and which rents,' and cannot be departed from " ; those of the freeholders are fre- q^^it-rents. quently called chief-rents, and both sorts are indifferently denominated quit-rents, because thereby the tenant goes " quit and free " of all other services (.s). Copyhold rents are those paid by the tenants of the (f) Copyhold manor to the lord for their tenements holden by copy of ^^^ ^' coui't roll. As fealty was always incident to this species of Are in their tenure, these rents are in their very nature rent-services, rent-se^rvice. and as such have always been considered to be distrainable of common right {t) . Sometimes rent is made payable from quarter to quarter, (g) Rent pay- or otherwise, in advance {ii). It cannot be recovered in advance. (o) Co. Litt. 143 b, note 5 ; (/•) Co. Litt. 144 a, note 5 ; 2 Inst. 44 ; Governors of Bradbury v. Wright, Doug. Christ^s Hospital v. Harrild, 627. 2 M. & G. 713, note; BuUen, (s) 2 Bl. Com. 41 ; Gilb. 30. Eents, 38 ; Co. Litt. 144 ; Harg. {p) 18 Edw. 1, c. 1. n. 5 ; 2 Inst. 19. (q) Spelm. Grloss. voce (t) Laugher v. Humphrey, Feodi Ferma ; Terms de la Cro. Eliz. 524. Ley, voce Fee Farm. (m) Harrison v. Barry, 7 Price, 690. o. c 18 SEVEEAL KINDS OF RENT. Part I. advance in an action for use and occupation (,r). But a Chap. I. distress may be made, or an action maintained for such rent, as soon as it becomes payable according to the terms The reser- of the demise {i/) . Such reservation should be clearly ex- be clearly pressed to be payable from time to time in advance, other- expressed, ^^gg -^ jj^r^y. pepj^aps be construed as applicable to the first quarter only (s). Where premises were let, the "yearly rent to be 110/., and to be payable in advance if the land- lord required the same," nothing being said as to the days of payment, and after a quarter had expu'ed the landlord demanded a quarter's rent only ; it was held that he was not entitled to distrain for the whole 110/. {a). But where it was a condition in the lease of a farm that a tenant should pay the last half-year's rent in advance, which last half-year's rent should be considered as reserved and due on the 29th of September preceding, if the landlord should see cause for such demand ; it was held that the rent was due on the 29th of September, but that the landlord could not distrain for it without notice of his election and de- mand that it should be paid {h) . And again, where the defendant let premises to a tenant from June 15 th, 1815, for five years at a yearly rent of 100/. to become due and payable in advance, if demanded, by equal quarterly pay- ments on the 15th of September, December, March, and June respectively in every year, "j3ro\dded always that if the yearly rent thereby reserved, or any part thereof, should be in arrear for twenty-one days next after any of the days thereby appointed for payment thereof in ad- vance, being fu^st lawfully demanded at any time after the said twenty-one days, and not paid when demanded," then the lessor should have power to re-enter, &c., and no (x) Anqell v. Randall, 16 {z) Holland v. Falser ., 2 L. T. N. S. 489. Stark. 161 ; Hojjkms v. Hel- (y) Jenner v. Clecjg, 1 Moo. more, 8 A. & E. 463. & Eob. 213 ; Lee v. Smith, 9 («) Clarke v. Holford, 2 C. Exch. 662; Morton v. Woods, & K. 540; Wooclf. L. & T. L. E. 4 Q. B. 293; Ex parte 12th ed. 348. Hale, In re Binns, L. E. 1 Ch. {h) Witty v. Williams, 10 285. L. T. N. S. 457. SEVERAL KINDS OF RENT. 19 rent was demanded until August, 1852, when, upon its Part I. not being paid, the defendant distrained ; it was held that Chap. I. the construction of this demise was, that the rent was payable in advance, but that it was not to be actually paid until demanded, and therefore that the defendant was entitled to distrain (c) . Besides the different kinds of rent which we have men- (^) Rents !_• T 11 j> L !t • 1 J I'll distraiiiablo tioned, there are a lew rents oi a special natui-e which do of common not strictly fall within any of the above denominations, "g^*- These have been called rents distrainahle of common r'ujlti (<'/); such are rents granted by one co-parcener to another for equality of partition ; or to a widow out of land of which she is clowable in lieu of dower {e) ; or where a rent is granted in lieu of lands upon an exchange, or reserved on a tenancy at ■will ; in all these cases the rents may be dis- trained for of common right (/) ; but if the grantee assign over, neither he nor the assignee can sue for arrears due before the assignment. The statute 12 Car. II. c. 24, s. 5, which abolished mill- 12 Car. 2, tary tenm^es, provides that nothing therein contained shall "• -^ > ^- ^* be construed to take away any rents certain, or other ser- vice, incident or belonging to tenure in common socage, or the fealty and distress incident thereunto ; and such relief shall be paid in respect of such rents as is paid in case of the death of a tenant in common socage. It "svill be seen, therefore, that anciently at common law the remedy of distress was applicable, or not, to the re- covery of a rent according to the particular kind to which such rent belonged, namely, to one or other of the three kinds of rent-service, rent-charge, or rent-seek. And so this continued (with the exception of certain statutory (c) Williams v. Holmes, 22 183. L. J. Ex. 283 ; and see Mai- (d) Co. Litt. 141 b. Ia77i V. Ay-den, 10 Bing. 299, (e) Coll v. Bishop of Co- as to the necessity of demand ventry, Hob. 140 and 153. for rent previous to a distress, (/) Bullen, 31. and ;jos^, pp. 165, 164, 181— c2 20 SEVERAL KINDS OF EENT. Parti. Chap. I. 4 Geo. 2, c. 28, s. 5. Distress now incident to every species of rent. Seisin of rent, provisions enabling certain persons to distrain for rent wlio could not before distrain at common law) until the passing of the statute 4 Greo. II. c. 28, s. 5, by which it was enacted that "there shall be the like remedy by distress in cases of reck-seck, rents of assize, and chief rents, which had been duly paid for the space of thi'ee years, within the space of twenty years before the first day of the session in which the Act was passed (23rd January, 1731), or ichich should be thereafter created, as in case of rent reserved vj^on lease. ^' Distress, therefore, is now incident to every species of rent, either of common right, or by virtue of a charge, or by force of the statute 4 Geo. II. c. 28 ; provided, in the case of rents-seek, rents of assize, and chief rents, that they have been created since that statute, or that they have been paid dm'ing the time and within the period therein prescribed. In Musgrave v. Emmerson (g) there was no evidence that certain rents had been paid for the space of three years contimiousli/ within the space of twenty years before the 28th of January, 1727; and it was held that it is sufficient if the rent was paid for the space of three ichole years mthin twenty years before the passing of the Act, though those years may not be consecutive. A previous fee-farm rent may be distrained for under this statute, pro\ided it is brought within this section {h). It was also formerly necessary that the party distraining should have a seisin of the rent, without which there was no privity between him and the tenant ; but since the statute 4 Anne, c. 16 (which rendered attornment in future un- necessary), the doctrine of seisin with relation to a distress for rent has become nearly obsolete, although it may pos- sibly come into question in some cases, as in a distress for an ancient rent-charge created before the statute of Anne (/). {g) 10 Q. B. 326. (A) Dodds v. Thompson, L. E. 1 C. P. 133; Bradbury V. Wright, 2 Doug. G24 ; Musgrave v. Emmersoti, 10 Q. B. 326. (0 Bradby, 21. 21 CHAPTEE II. OF THE APPORTIONMENT OF RENT. It now becomes necessary to deal shortly witli the subject of ap23ortionment of rent. Apportionment is divided into two classes, — viz., in respect of estate, and in respect of time. With regard to the latter, various provisions of the legislature have helped to simplify what was previously an intricate and difficult subject. We will first consider the law of apportionment of rent in respect of estate. As soon as a rent comes into existence it is at all times (a) Apportion- liable not only to be apportioned, but also to be suspended, in respect of extinguished, or discharged ; and as the remedy of distress estate. is entirely dependent upon the existence of the rent, it will be easily seen how important it is to bear these distractions in mind. According to Sir E. Coke, " apportionment" signifies " a Definition of division or partition of a rent, common, &c., or a making ment! ^^^' of it into parts ; " but it has been better defined as " fre- quently not denoting division, but distribution ; and in its ordinary technical sense, the distribution of one subject in proportion to another previously distributed" (a). A rent-service being something given by way of return As regards to the lessor for the use of the land demised, if the tenant is by any means deprived of the land demised, his obhga- tion to pay the rent ceases {b) . {a) Hmitley v. Ro2)er, 1 Woodf all's L. & T. 10 ed. 361. Anderson, 21 ; Ex parte {b) 3 Cruise, T. 28, c, 3, Smyth, 1 Swanst. 338, n. ; s. 1, 22 APPORTIONMENT OF RENT. Peart I. Chap. II. Apportion- ment on the alteration of the lessee's interest. On purchase of tenancy. By a s\xr- render. By act of God. Eviction of lessee. Kesmnptlon or purchase of the tenancy by the lord causes an extinguishment of the rent {c). If, however, a person who has a rent-service purchases part of the land from which it issues, the rent will he extinguished only as to the part piu'chased, and the amount which will in future have to he paid will he apportioned according to the value of the land {d). So like^^ise, if a lessee for life, or years, surrender part of the land to the lessor (e), or the lessor enter upon part of the land for a forfeiture in part, the rent will be apportioned (/). It seems, also, that where part of the land is lost to the lessee by the act of Grod, he may insist that the rent be apportioned ; as where the sea breaks in and overflows a part of the land {(/). Apportionment also takes place where the tenant under a lease has been evicted of part of the land out of which the rent issues by a person having title paramount to that of the lessor {/i). But where lands and goods are let at an entire rent, and the tenant is evicted from the lands, no apportionment of the rent can be made for the goods, as rent issues from the land alone (/). In Salmon v. Mat hens (Ii), however, it appears to have been thought that the rent might be apportioned ; but the case was de- cided on the ground that there was evidence for the jmy to infer a fresh agreement to pay for the use of the goods (/) . (c) 3 Cruise, T. 28, c. 3, s. 3. (fZ) Litt.s.222; Choi's case, Tudor's L. C. Conv. 3rd ed. 310. (e) Co. Litt. 148 a ; Sirnih v. Malings, Cro. Jac. 160. {/) Stevenson v. Lombard, 2 East, 580 ; Walker'' s case, 3 Cro. Eep. 22. (y) 1 Eolle's Abr. 236 ; I. 46. (A) Co Litt. 148 a ; Tom- linsoyiY. Baxj, 2 B. & B. 680; Stevenson v. Lombard, supra. The estabhshing of a right of common on land demised is not an eviction of a tenant, as the soil is not recovered. Jeiv V. Thirhwell, 1 Ch. Cas. 31 ; Bullen, 35, n. 5. (?) Emott'scase, Dyer, 212b; Collins V. Harding, Cro. Eliz. 606 ; Cadogan v. Kennett, Cowp. 432; Gilb. Eents, 175; Williams v. Hayicood, 1 E, & E. 1040. {k) 8 M. & W. 827. (0 H. Smith's L. & T. p. 172. APPORTIONMENT OF RENT. 23 In all these cases rent-service is apportioned on the altera' Part I. Hon of the lessee's interest; but it is also apportionable on Chap. II. the severance of the lessor's reversion, and this takes place Apportion- in two ways — either by the act of law, or the act of the ™°^^* °* ^^^l J J ^ on severance parties. of the lessor's reversion. Thus, by act of law ; where lands demised at an entire By act of law. rent become divided amongst different persons ; as where freehold and leasehold lands are let together at one rent, an apportionment takes place at the death of the lessor amongst the real and personal representatives {ni). In like manner, where a man leases one acre of borough English tenure and another of gavelkind by one demise, and having two sons, dies {n) ; and where a husband leases for years reserving rent, and dies, and the widow recovers a third part of the reversion for her dower (o) ; in these cases the law apportions the rent in the same manner as it disposes of the reversion {]i). So also, where the reversion is severed by act of the By act of parties. If the lessor grant or devise part of the reversion ^^ to a lessee, or to a stranger, the rent which is incident to the reversion will be apportioned (y/, 2 East, 580; O' Con- p. 3G. nor v. O^ Connor, 4 I. R. Eq. {n) Rtishton's case, Dy. 4 b; 483 ; Tudor's L. C. Conv. 3rd Eiver V. Moyle, Cro. Eliz. 771 . od. 310. (o) 1 Roil. Abr. 237. {r) Bliss v. ColUngs, 5 B. \p) Bullen, 36, 37. & A. 876 ; Woodfall's L. & (^) Co. Litt. 148 a; West T. 10th od. 361. V. Lascelles, Cro. Eliz. 851 ; 24 APPORTIONMENT OF RENT. Part I. Chap. II. No appor- tionment where tenant not liable to payment of the whole amount. As regards a rent-charp:e. 1881 (s) (whicli seems to add nothing to the rights given by the common law to legal owners of reversions), "rent reserved by a lease shall be annexed and incident to, and shall go with the reversionary estate in the land, or in any part thereof, immediately expectant on the term granted by the lease, notwithstanding severance of that reversionary estate, and shall be capable of being recovered by the person from time to time entitled, subject to the term, to the income of the whole, or any part, as the case may require, of the land leased." (By sub-sect. 2, this section applies only to leases made after the commencement of this Act.) No apportionment of rent can take place where a rent- service has been so reserved that the tenant never became liable to the payment of the whole amount. Thus, where a lessor demised by parol certain premises for a year, and the lessee accepted the lease and entered upon a part of them, and found another person in possession of part of the demised premises under a previous lease from his lessor ; and this person continued to occupy that part in exclusion of the lessee imtil the expii-ation of the first half year, although the lessee occupied the remainder; it was held that the demise was wholly void, the rent not being apportionable, and that the lessor was not entitled to dis- train for the whole rent or any part of it {t) . Formerly a rent-charge was governed by very different rules from those which regulated the apportionment, sus- pension, and extinction of rent-service. For the grants of rent-charges, being in tlieii' origin of no benefit to the public, but against common right, and contrary to the policy of the common law, and moreover tending to lessen the tenant's ability to render his feudal services, the law from the earliest times carried them into execution so far (s) 44 & 45 Yict. 0.41,8.10. {t) Keale v. Mackenzie, 1 M, & W. 747. APPORTIONMENT OF RENT. 25 only as tliey took effect, strictly, and according to the Part I. original intention of the particular grantor in each in- Chap. II. stance {u) . There is a most important difference between the effect Difference of a purchase of part of the land in the case of a rent- charge and service and a rent-charge. For if a rent-charge issuing rent-semce. out of certain lands was vested in a man and his heirs, and he purchased part of the land in fee, the rent-charge would have been extinguished, upon the gi'ound laid down by Lord Coke(.r), that "the rent is entire, and against common right, and issuing out of every part of the land (?/) ; and therefore by purchase of part it is extinct in the whole, and cannot be apportioned." So, where a person having a rent-charge out of land released part of such land from the rent, the whole rent would be extinguished under the old law, because it issued out of the whole of the land ; but he might have released part of the rent-charge without extinguishing the whole ; as " the grantee deals only ^Nith that which is his own, namely, the rent and not the land " (s). Now, by the statute 22 & 23 Yict. c. 35, s. 10, the "re- 22 & 23 Vict. lease from a rent-charge of part of the hereditaments ^' ^' ^' charged therewith, shall not extinguish the whole rent- charge, but shall operate only to bar the right to recover any part of the rent-charge out of the hereditaments re- leased, without j)rejudice, nevertheless, to the rights of all persons interested in the hereditaments remaining unre- leased, and not concurring in or confinning such re- lease" (r/). It is doubtfid whether this Act extends to implied releases, or to those by operation of law. («) BuUen, 38. (2) 18 Vin. Abr. Eent, 504; (x) Co. Litt. 147 b. 3 Cruise, Dig. 301 ; Co. Litt. (y) Litt. 222 ; 3 Cruise, T. 148. See Bidlen, pp. 40, 41. 28, c. 3, ss. 13, 14 ; Burton, («) Clunks case, Tudor's L. 8. 1121; 2 Jarm. & Byth. by C Conv. 3rd ed. 331. For Sweet, 60. apportionment under certain 26 APPORTIONMENT OF RENT. Part I. We will now consider the law of apportionment of rent Chap. II. in resjiecf of time. (b) Appor- At common law, as is laid down in Clun\s case, there is tionment of ,. jp i • j,pj_" i^i. rent in respect '^^ apportionment 01 rent m respect oi time ; rent not of time. being held to accrue due, like interest, "r/e die in diem," but only to become payable in the event of the accomplish- At common ^ ■*• , -^ . , ... law. ment of the full period upon the expii^ation of which it is made payable. Thus if a lessor seised in fee, or having a limited interest with a power of leasing, died in the interval between the two days of payment, his personal representa- tives at common law could not claim the rent up to the time of his death ; but it would go as incident to the re- version either to the heir-at-law, devisee, or remainderman, as the case might be {b) . This caused great inconvenience and injustice ; and in the reign of King George the Second a remedy for a pro^^ortionate part of the rent, according to the time such tenant for life lived, was given by Act of Parliament to his executors or administrators (c). And by another statute (r/), the executors and administrators of any tenant for life, who had granted the lease since the 16th of June, 1834 (the date of the Act), might claim an apportionment of the rent from the person next entitled when it should become due. This Act, however, did not apply unless the demise were made by an instrument in The Appor- writing {c) . And finally, by the Apportionment Act, 1870. ' 18'^6 (_/) (which, however, does not repeal these previous statutes) , it is provided that after the passing of that Act statutes, see Lands Clauses rtson, 2 Madd. 268 ; Tudor's Consohdation Act, 1845 (8 L. C. Conv. 3rd od. p. 301. Vict. 0. 18, s. 119); and also (c) 11 Geo. 2, c. 19, s. 15. 4 & 5 Vict. c. 38; 12 & 13 (d) 4 & 5 WiU. 4, c. 22, Vict. c. 49, s. 1 ; 17 & 18 Vict. s. 2. 00.32,97,116. (e) Caiileyy. Arnold, Y.-C. (b) Earl of Strafford v. W., 7 W. E. 245 ; Mills v. Lady Wentivorth, 1 P. Wms. Trumper, L. E. 4 Ch. 320. l%0; Lord Rockingham \. Pen- (/) 33 & 34 Vict. o. 35, rice, Salk. 578; NorrisY. Har- s. 1. APPOETIONMENT OF RENT. 27 (which took place on the 1st of August, 1870), " all rents Part I. and other periodical payments in the nature of income t-hap. II. (whether reserved or made payable under an instrument in writing, or otherwise) shall, like interest on money lent, be considered as accruing from day to day, and shall be apportionable in respect of time accordingly." By sect. 2 of this Act, " the apportioned part of any such rent, &c., shall be payable or recoverable in the case of a continuing rent," &c., " when the entire portion of wliioh such appor- tioned part shall form part shall become due and payable, and not before ; and in the case of a rent," &c., " deter- mined by re-entry, death, or othermse, when the next entire poi-tion of the same would have been payable if the same had not been so determined, and not before." By sect. 4, " all persons and their respective heirs, executors, administrators, and assigns, and also the executors, admi- nistrators, and assigns respectively of persons whose inte- rests determine with their own deaths, shall have such or the same remedies at law and in equity for recovering such apportioned parts as aforesaid when payable (allow- ing proportionate parts of all just allowances), as they respectively would have had for recovering such entire portions as aforesaid, if entitled thereto respectively ; pro- vided that such persons liable to pay rents reserved out of or charged on lands or other hereditaments of any tenure, and the same lands or other hereditaments, shall not be resorted to for any such apportioned part forming part of an entire or continuing rent as aforesaid specifically ; but the entire or continuing rent, including such apportioned part, shall be recovered and received by the heir or other person who, if the rent had not been apportionable under this Act, or other'^'ise, would have been entitled to such entire or continuing rent; and such apportioned part shall be recoverable from such heir or other person by the exe- cutors or other parties entitled under this Act to the same." By sect. 7, " the provisions of this Act shall not extend to 28 APPORTIONMENT OF RENT. Part I. any case in wliich it is or sliall be expressly stipulated that Chap. II. no apportionment sliall take place." Having now treated on the subject of rent, we will turn our attention to the remedy given by law for its non-pay- ment ; namely, distress. 29 CHAPTER III. WHO MAY DISTRAIN. We will now consider tlie various persons wlio are entitled to distrain for arrears of rent, either in respect of tlieir estate, or interest in the property distrained upon. A power of distress implies an antecedent right of action («}. Distress being of very ancient origin, and immemorially known to the common law, exists in very many cases ; and is not only confined to those in which the relationshijD of landlord and tenant is established. But as the instances where the right of distress is employed occur far the most frequently between landlord and tenant, we propose to discuss their rights with relation to each other in the first place, before proceeding to treat upon the former cases. It is an established rule that a landlord has no right to (a) Actual distrain unless there be an ^'■actual demise at a fixed rent. ^^ fixed'^rent^ Therefore where a tenant was in possession under a memo- randum of agreement to let on lease, with a purchasing clause for twenty-one years, at a net clear rent of 63/., the tenant to enter at any time on or before a particular day ; it was held that this only amounted to an agreement for a future lease, and that no lease having been executed, and no rent subsequently paid, the landlord was not entitled to distrain ih). So again, if under an agreement for a lease at a rent certain the tenant is let into possession before the lease is executed, the lessor cannot, during the first year, (a) Per Lord O'Hagan in 533. G. E. liy. Co. V. Harivich {b) Dunk v. Hunter, 5 B. & {Mayor, Sfc), 41 L. T. N. S. Aid. 322. 30 WHO MAY DISTRAIN. Part I. distrain for rent, for there is no demise express or im- Cliap. III. plied (c). But if tlie agreement goes on to say that until the lease shall he executed the rent, covenants, and agree- ments to be therein contained shall he paid and observed, and the several rights and remedies enforced in the same manner as if it had been actually executed ; that Avill, on entry, create a tenancy at a fixed rent, for which the landlord may distrain when due, although no rent has been paid under the agreement (r/) . And where an intended piu-chaser, by the contract of sale, agreed to become tenant from week to week to the vendor of the hereditaments agreed to be sold, at a weekly rent to be paid in advance, such provision was held not to be in the natm'e of a penalty, but that a tenancy existed, and the rent might be distrained for (e) . But where a tenant entered under an agreement contain- ing stipulations for a lease at 251. a year, and an engage- ment by the landlord to comx>Iete certain erections, and the erections were never completed, and the tenant never paid any rent, but being called on after some years' occupation, said he was ready to pay what was due, provided the erections were completed, and an allowance made to him for the expense of some repairs ; it was held that a demise at a rent certain could not be implied, so as to entitle the landlord to distrain (/) . And where P. agreed to let land to H., subject to certain covenants, and the lease was to be granted immediately after P. should obtain a lease of (c) Hegan v. JoJmson, 2 (e) Yeoman v. Ellison^ L. Taunt. 148; Knight v. Ben- E. 2 C. P. 681. (As to rent nett, 3 Bing. 361; Riseley y. paid as compeusatiou for the liyle, 1 1 M. & W. 1 6 ; Ward use of premises converted V. Day, 5 B. & S. 359 ; Wat- from one union to the use of son V. Waud, 8 Ex. 335; a,i\oi\\QV,?,ee Guardians of Poor Hancock v. Austin^ 14 C. B. of Woodhridge Uniony. Guar- N. S. 634. dians of Poor of Carlford {d) Anderson v. Midland Unio7i, 13 Q. B. 269.) Rail. Co., 3 E. & E. 614; (/) liegnart v. Porter, 7 PineroY. Judson, 6 Bing. 206; Bing. 451 ; Hopcraft v. Keys, Rollason V. Leon, 7 H. & N. 9 Bing. 613 ; Mechelan v. 73. Wallace, 7 Ad. & Ell. 54, n. WHO MAY DISTRAIN. 31 the same pyemises from M. Tinder a tlien subsisting agree- Part I. ment between P. and M., sucli lease from P. to H. to Chap. III. contain like covenants as those in the lease from M. to P., and such other covenants as were usual in such leases, and H. agreed to pay the rent, as if the lease from P. were already executed, and if H. failed to pay the rent P. was to enter; it was held that the instrument did not amount to a present demise, inasmuch as P. ajDpeared by the agreement to have no present power to grant the lease ; and that, H. having entered and made default in pa;)Tnent, P. could not distrain {(/) . On the other hand, where an agreement between the plaintiff and the defendant referred to a lease which had been granted by the defendant to W., and the plaintiff agreed to become tenant, upon the condi- tions contained in that former lease ; it was held that the terms of the former lease became incorporated in and formed part of the agreement, and that both of them together supported a right on the part of the defendant to distrain for rent (h). Where a tenant wrote to a landlord saying, " I will take the premises for 100/. the first year, and afterwards for 110/. per annum, payable quarterly, the rent to commence from Michaelmas last," and he then agreed to do certain buildings, to take a lease for twenty- one years under the usual covenants, ''and the ivhole subject to your being satisfied as to my responsibility, to ascertain which I beg to refer you to M." and the landlord wrote saying that the reference was satisfactory, and he accepted him as tenant, and on the tenant's paying him 100/. without any valuation being made or lease prepared ; it was held that the tenant's letter and the landlord's reply created an actual demise with the right to distrain, and that if any doubt as to the right to distrain arose from the correspondence, it was cleared up by the conduct of the parties, to which it was competent (^) Hayivard v. Tlaswell, G {h) Pearce v. Cheslyn, 5 N. Ad. & EU. 2G5. & M. G52. 32 WHO MAY DISTRAIN. Part I. Chap. III. An actual demise may- be implied. Weekly tenancy. for the Coiu't to refer ; and that when the landlord stated that the inquiiy was satisfactory, and he accepted the j)laintiff as his tenant, the agreement ceased to be condi- tional, and became absolute and positive. It was held also, that that which in law purports to be an actual de/nise may be created by two distinct separate instruments, namely, a letter from a tenant to a landlord, and the answer of the latter, it not being essential to the creation of such actual demise that the agreement by which it is created should be contained in any instrument (/) . An actual demise at a fixed rent may be implied from very slight circumstances. Thus, wdiere a tenant, who had entered on premises under an agreement for a lease, admitted a charge of half a year's rent in an account be- tween him and his landlord ; it was held that this was equivalent to payment, and constituted him a tenant from year to year, and made him liable to a distress {J ) . And again, where the plaintiff took possession of premises under an agreement for a lease to him for seven years, at a yearly rent payable half-yearly, but no lease was executed, nor was the quantum of rent to be paid ascer- tained, and the plaintiff occupied under the agreement for three years and paid rent for two; it was held that this created a tenancy from year to year, and entitled the land- lord to distrain for the aiTears due at the rate previously paid (A-). A landlord may distrain upon a tenant from week to week at a "weekly rent (/), and on a tenancy at will, if a yearly rent is reserved (m) ; but he cannot distrain when he has absolutely assigned his interest in the pre- (t) Chapman v. Bluck, 4 Bing. N. C. 187. {j) Cox V. Bent, 5 Bing. 185 ; Vincent v. Godsoii, 24 L. J. Ch. 1 22 ; Mcchelan v. Wal- lace, 7 A. & E. 49 ; Vauyhan V. Hancock, 3 C. B. 76G ; M'Leish v. Tate, Cowp. 781. (Z) Knight v. Bennett, 3 Bing. 361. {V) Yeoman v. Ellison, L. E. 2 C. P. 681. (wi) Litt. s. 72 ; Morton v. Woods, L. E. 4 Q. B. 293. WHO MAY DIHTKAIN. 33 mises {n). If a tenant holds over on sufferance only, as Part I. there is then no " agreed rent," or actual tenancy, a Chap. III. distress cannot la-^^ully be made, but the remedy is by Tenancy on action for use and occupation (o) . sufEerance. As we have said before, the rent which is essential to a Rent must be distress must be certain ; but a rent is sufficiently certain ^^^ ^^' which may be reduced to certainty by computation (jj). In Daniel v. Grade {q), the proprietor of a house, marl- pit, and brick mine, demised the house by an unwritten agreement to a tenant from a day named ; and it was at the same time agreed between them that the tenant should take the marl-pit and brick mine, and should pay quarterly a certain sum for what he got out of it ; the Court held that this created a demise of the land from year to year at a rent capable of being ascertained ivith certainfi/, and for which, therefore, the lessor might distrain. Where a lease of tithes and land was granted at an entire rent, and it was void as to the tithes because it was not under seal ; it was held that a distress for ari'ears of rent was altogether unlawful, because there was no distinct rent due for the land(r). And where a lease was made hij parol of 100 acres of land at a certain rent, and the lessee accepted the lease, and entered upon the land, but afterwards foimd that eight acres had been previously demised by his lessor to another person who was in possession ; it was held that the demise was altogether void as to the eight acres, and that the rent could not be apportioned, and, therefore, could not be distrained for (-s') ; but it would have been {ii) Parmenter v. Webber, Cameron, L. E. 5 Q. B. 306. 8 Taunt. 593. {q) 6 Q. B. 145. (o) Alfordy. Vickery, Qax. (r) GardinerY. Williamson, & M. 280 ; Jenner v. Clegg, 1 2 B. & Ad. 337 ; see also Moo. 8c E. 213; Williams x. Meggison v. Lady Glamis, 7 Stiven, 9 Q. B. 14. Exch. 685. {p) See ante, p. 4; Doe ([. {s) Neale v. Mackenzie, 1 Edney v. Benham, 7 Q. B. M. & W. 747; Holgate v. 976; Selhy v. Graves, L. E. Kay, 1 C. & K. 341. 3 C. P. 594, 603 ; Turner v. 34 ^Y^o MAY DISTRAIN. Part T. otlier'udse had the demise been under seal, because that Chap. III. ^voiikl have operated as a grant of the reversion and its incidents as to the eight acres, and no apportionment of the rent would have been necessary (/). And in a later case, where A., by a contract in writing, demised to B. at a yearly rent of 145/. from the 14th of May, 1851, certain premises, including a cottage occupied by C. at the rental of 5/. a year, and B. took possession of all the premises included in the demise, except the cottage, as C. refused either to go out or attorn to B., and before the day fixed for the first half-yearly payment of rent, A. and B. ver- bally agreed that A. should receive from C. some arrears of rent, and that A. should -pay B. 70/. on the 14th of November, 1851, and 70/. on May 14th, 1852; it was held that this was a new demise, and that A. was entitled to distrain for the 70/. due on the 14th of November, 1851 ; Pollock, C. B., sajdng, " It is quite clear that if no new agreement had been come to, then the case of Ncak v. Mackenzie (ii) would have a^iplied, and the defendant would not have been entitled to distrain ; but here the parties came to a fresh agreement" {x). Cases have arisen where there have been doubts whether there was really a demise or not, or whether the conclusion to be drawn from the facts was that there was a mere Mere licence, "licence," and the sum payable for the privilege of using such licence not sufficiently in the natm-e of a rent to support a distress. Thus, in the case of HancocJc v. Austin (p) (which we have referred to above), the o^Tier of a factory, fitted up with steam power, let certain rooms in it to persons owning lace machines, and allowed them the jirivilege of keeping their machines there, or in other words he let them the " standings." The j)laintiff was (t) Ecclesiastical Commis- {u) 1 M. & "W. 758. sioners of Ireland y. G' Connor^ {x) Watson v. Waud^ 8 9 Irish Com. L. E. 242 ; LaU Exch. 335. V. Bean, 28 Beav. 607 ; AYood- (y) 14 C. B. N. S. 634. faU's L. & T. 10th ed. 380. WJIO MAY DISTRAIN. 35 one of these persons, and lie paid to the defendant twelve Part I. shillings per week for this permission, stipulating- that he Chap. III. was to have the right of free entry for the purpose of seeing that his machines were in order, and working them. It was hold that these facts constituted a mere " licence," and not a demise, and that the weekly payments above mentioned could not be distrained for as "rent." But this case was distinguished in the more recent decision of Selby V. Greaves (z), where similar "standings" were let, as in the case of Hancock v. Ait^tin {a), but the portion of the room in which the lace machines were placed nris divided from the rest of the room bi/ a 'partition, and the hirer kept the hey ; it was held from these facts that the relation of landlord and tenant subsisted; Willes, J., observing, that " there was not here the letting of a mere ' standing' for the machinery, but a letting of a defined portion of the room, separated from the rest, with the intention of giving the exclusive occupation to the person to wdiom it was let." A licence to get all the copperas stone which may be found in part of a manor for twenty-one years, at the yearly rent of 25/., is not a demise, and will not support a distress for the agreed rent {b) . The right to distrain may also exist by express agreement between the parties, although the subject-matter in respect of which this power is reserved is not, strictly speaking, a rent. Thus, where by an indentiu-e of demise there was a stipidation that the tenant should not sell hay, &c., off the premises, under a penalty of two shillings and sixpence per yard of the hay so sold, to be recovered by distress as for rent in arrear; it was held that the legal operation of this demise was to create a penalty recoverable by distress as for rent, but not d rent (c). (s) L. E. 3 C. P. 594. (c) Pollitt v. Forrest, 11 Q. (a) See supra. B. 949. See also Yeoman v. Ih) Ward v. Bay, 4 B. & S. Ellison, supra, p. 30 ; L. B. 337; 5B. & S. 359. 2 0. P. 681. 1)2 36 WHO MAY DISTKAIN. Part I. Chap. III. Eight of dis- tress may be postponed by ao:reement. Acknowledg- ment of an antecedent tenancy. Surrender. On the other hand, the right of distress is not so inseparable an incident to a demise that it cannot be postponed by agreement between the parties. Therefore, where A., a mesne landlord, let premises to an under- tenant by a written agreement, which provided inter alia that no distress should be made till after A. had produced the receipt of his superior landlord for his rent, and A. afterwards distrained without producing such receipt ; it was held that A.'s right was postponed until after his rent had been paid, and that the defendant was liable as a trespasser [d). A subsisting tenancy is not determined by an agreement whereby the landlord lets to his tenant at a valuation to be made by two persons, and stipulates that the tenant is to give sureties to answer for the rent, if no valuation be made and no sureties given [e). An acknowledgment of an antecedent tenancy at a specified rent, with an agreement to go on on certain terms, is sufficient to authorize a distress (/). But a lessor who lets to an under-tenant cannot, after the term has expired, enforce the continuance of the under-tenaney by distress, if the under-tenant refuses to acknowledge him as landlord, or pays him under threat of distress, although the under-tenant still retain the possession {g). If the occupier of a house submits to a distress for rent stated in the notice of distress to be due from him as tenant to the distrainor, this is an acknowledgment of the tenancy {Ji). If a tenancy has existed, a surrender of the term must be coinpiete, or the landlord's right to distrain will con- (f/) Giles V. Spencer, 3 C. B. N. S. 244. See also Yin. Abr. "Eeleases," Gr. (), Part I. but this has been doubted {q). And (in a case decided on Chap. III. the 11 Geo. II. c. 19, s. 18) where a tenant held under a Weekly demise for one year from the 25th of March then next tenant hold- ensuing, and so on from year to year, and having held for more than one year gave a parol notice to the landlord less than six months before the 26th of March that he would quit on that day, wliich notice the landlord accepted; it was held that the tenancy was not thereby determined, there not having been a sufficient notice to quit, or a surrender in writing. And, therefore, the tenant having holden over after the time mentioned in the notice to quit, the landlord was not entitled to distrain for double the rent under the 11 Geo. II. c. 19, s. 18, inasmuch as that statute apphod to those cases only where the tenant had the power of determining his tenancy by a notice, and where he actually gave a valid notice sufficient to determine it (r). Where it appeared that by the custom of the country Custom of the the tenant was to leave his away-going crops in the ^°^^ ^' barns, &c., of a farm for a certain time after the lease had expired, and the tenant having quitted the j)remises, the landlord distrained the corn so left for rent in arrear, six months having expired since the termination of the term ; it was held that the landlord was entitled to distrain, as the holding by the tenant under the custom of the country was a prolongation of the original term (•§). Where a landlord's receiver allowed a tenant every year Mistake for seventeen years to make a deduction in respect of a {p) SiclUvany. Bishop, 2 0. pp. 177, 178. & P. 359. (s) Beavan v. Delahay and {q) See BuUen, 116, n. 5 ; Leivis, 1 H. Bl. 5 ; and Leivis Woodf. L. & T. 12th ed. p. v. Harris, in the note. See 385, n. (/). also Knicjht N.Bennett, 3 Bing. {r) Johnstone Y. Hudlestone, 361; Nuttall v. Staunton, 4 4 B. & C. 922. See post, B. & C. 51. 40 WHO MAY DISTEAIN. Part I. Chap. III. (b) Rever- sioners. At common law. Assignment of reversion by landlord. Severance of the reversion. pajonent for land-tax, greater than the landlord was liable to pay, and the landlord knew, or had the means of know- ing, all the facts ; it was held that he could not distrain for the amount erroneously allowed, although the receipt given every year showed the amount paid and the amount deducted (/). It is also an established rule that a landlord cannot dis- train for rent unless he has the reversion. As we have seen before, persons standing in the situation of landlords might, at the common law, have distrained for the rent reserved upon their leases, provided they had a future re- version in the land, whether immediately expectant on the determination of the term, or at a more distant period (u) ; but if the landlord afterwards assigns his reversion, eitlier absolutely or by way of mortgage, the remedy by distress for such arrears will be lost. Where a plaintiff mortgaged leaseholds to Y., and Y. assigned the mortgage to the defendants, the mortgage deed containing a clause " that the said Y. may have the same powers of entry and distress as are by law given to landlords, and the plaintiff attorns hereby to the said Y.," and the defendants, after the assignment, entered and seized for arrears of interest due bffore the assignment ; it was held that the defendants could not justify such seizure under the above clause, which created a tenancy to give such rights of distress as would arise under such tenancy — /. c, only so long as such tenancy continued — and that Y., having conveyed his estate before the seizm-e, could not distrain {x). The right to distrain may also be lost by the severance of the reversion. Thus, where the plaintiff was tenant {{) Bramston v. Bohms, 4 Bing. 11. (m) Ante, p. 14 ; Bradby, 67 ; Co. Litt. 142 b. (:r) Browne v. Metropolitan Counties Life Assurance So- ciety, 1 E. & E. 832 ; see also Threr v. Barton, Moore, 94; Dixon V. Harrison, Vaughan, 52 ; Smith v. Torr, 3 F. & F. 505 ; In re Davis 8f Co., Ex jmrte Raiclinys, W. N. 1888, p. 236. REVERSIONERS. 41 from year to year to six joint tenants, four of whom Part I. assigned their interest to a third party, subject to the Chap. III. plaintiii's interest, and at the time of this assignment the plaintiff owed 111/, for aiTears of rent, and afterwards became tenant to the third party ; it was held that, after such assignment to the third party, all right to distrain for the arrears of rent was gone (y) . But a second lease to commence on the expiration of the Interesse previous one creates only an ^^ inferesse termini^' during the continuance of the first lease, and does not amount to an assignment of the reversion. Thus, where A. granted a lease to B. of premises for sixty-one years, and after- wards granted a lease to C. of the same premises, to com- mence at the expiration of the sixty-one years ; it was held that, by the lease to C, A. did not part with his reversion so as to disentitle him to distrain for rent under the lease to B. (s). As by the statute 4 Geo. II. c. 28, s. 5, all rents-seek are Rents-seek, made distrainable (a), a reversion is no longer requisite for that which is a rent-seek within the meaning of that statute (b) ; and as it seems to have been a rule of the common law that a rent could not issue out of a mere chattel (c), it has been determined on this principle that even since the statute, if a lessee for years assign over his On assigii- ,,, . jT 1 T J • p •! ment of the whole term reserving a rent, he cannot distrain lor it reversion. when in arrear, because he has no reversion, but he may bring an action for the rent, although no reversion remains in him (r/). Thus, where a lease came into the hands of (y) Staveley v. Alcock, 16 (c) See Btitfs case, 7 Eep. Q. B. 636 ; Flesher v. Trot- 23 ; Lord Mountjoif s case, 5 mayi, 6 L. T. N. S. 218. Eep. 4 ; Earl of Stafford v. {z) Smith V. Day, 2 M. & Buckley, 2 Ves. Eep. 170; W. 684 ; Blackford, app., Cole, Turner v. Turner, 1 Bro. Ch. resp., 5 C. B. N. S. 514 ; Doe Eep. 316. V. Jrf///te/-, 5 B. & C. 111. {d) Netvcomb v. Harvey, (a) Ante, p. 20. Carth. 161 ; v. Coojjer, (b) Ante, p. 14. 2 Wils. 375; Smith \, Maple- 42 WHO MAY DISTRAIN. Part I. tlie original lessor by an agreement entered into between Chap. III. Inin and the assignee of the original lessee " that the lessor should have the premises as mentioned in the lease, and should pay a particular simi over and above the rent annually, towards the good-^dll already paid by such as- signor ; " it was held that such agreement operated as a surrender of the whole term, and the sum in the agree- ment was considered as a sum to be paid annually in gross, not as rent ; and the assignee could not distrain either for that or for the original rent, but he had a remedy by action for the sum reserved for the goodwill (e). And, again, where the lessee of two farms agreed T\ith A. that he should have them during the leases for the same (A. to remain tenant to the lessee dming the leases), and at the leaving of the farms A. was to be paid for the fallows and dung, and A. took possession and paid one year's rent gro-s\TJig due after the date of the agreement to the lessee, who afterwards distrained for rent in an-ear ; it was held that the distress could not be supported, as the agreement operated as an absolute assignment of all the lessee's in- terest in the farms (/) . "Where one partner assigned to his co-partner property held under sub-lease, and after purchasing the freehold sought to prove against his co-partner's estate for sums paid for rent, it was held that this right of proof was not defeated on the ground that his co-surety, on paying the rent, became entitled to a right of distress from the rever- sioners which he had destroyed by taking an assignment haci:, 1 T. E. 441; Poidtncy Q. B. 1033 ; WiUiamsY. Hay- V. Holmes, Stran. 405 ; Hoby u-ood, 1 E. & E. 1040 ; but V. Roebuck, 2 Marsh, 433 ; see 44 & 45 Yiet. c. 41, s. 44, Talentine v. Denton, Cro. Jac. ante, p. 14. Ill; Bradby, p. 68, note g; (e) Smith v. Mapleback, 1 ParmenterY. JI>Z»5e/-, 8 Taunt. T. E. 441; Thorn v. Wooll- 593 ; Preece v. Corrie, 5 Bing. combe, 3 B. & Ad. 586. 24 ; Pascoe v. Pascoe, 3 Bing. {/) Parmenter v. Webber, N. C. 898 ; Bullen, p. 54, and 8 Taunt. 593. App. A. ; Pollock V. Stacey, 5 REVERSIONERS. 43 of the leases, thereby discharging his co-surety's estate by Part I. releasing a remedy to the benefit of which his co-surety Chap. III. was entitled {g). If a lessee underlet for a term shorter than his own by Underlease by one day or more, he has a reversion, and consequently a right to distrain, which will pass to his executors (//). And a tenant from year to year who underlets from year to year has a reversion sufficient to enable him to distrain (?'). But a lessor who lets to an under-tenant cannot, after the term has expu'ed, enforce the continuance of the imder- tenancy by distress, if the under-tenant refuses to acknow- ledge him as landlord, or pays him under threat of distress, although the imder-tenant still retains the possession {j). If a termor surrenders his term to the reversioner, reserving to liimself a rent, but mthout an express power of distress, he cannot distrain for the rent when in arrear, because he has no reversion. But if a surrender be made, and a new lease granted, Surrender, the right to distrain on previous under-tenants is preserved by the 4 Geo. II. c. 28, s. 6, which enabled a lessee to sur- 4 Geo. 2, render his lease for the purpose of taking a new one, \vdth- ^' " ' ^' ^' out a surrender of an imderlease, and saved to the lessee all the same remedies against the imderlessee, for rents, covenants, and duties, and to the original lessor the same remedies for rents and duties reserved in the former one out of which the under-lease was derived, as if the original lease were still kept on foot (A-) . And also by 8 & 9 Yict. 8 & 9 Viet. c. 106, s. 9, which enacts that " if a reversion expectant on a ^' ^' ^' ^' lease is surrendered, the estate which confers, as against the (y) Russell V. Shoolbred, 29 [j) Burne v. Richardson, Ch. Div. 254. 4 Taunt. 720. (A) Wade \. Marsh, IjRtdh, {k) Smith's L. & T. 317, 211 ; Bullen, 54. 2nd ed. ; Doe d. Palk v. Mar- {{) Curtis V. IVheeler, Moo. chetti, 1 B. «& Ad. 7r5. See & M. 493 ; Oxley v. James, In re Vitale, Ex parte Yotinq, 13 M. & W. 209 ; Woodf. L. 47 L. T. N. S. 480. &T. 12th ed. 393. 44 WHO MAY DISTEAIN. Part I. tenant, tlie next vested riglit to the tenements, shall he Chap. III. deemed the reversion for the purpose of j)reserving the incidents to and ohligations on the reversion " (/). Where A. took a lease in writing, in his own name, of premises, and subsequently occupied only part, and paid rent for so much as he occupied to B., as whose agent he in fact took the lease ; it was held that B. might distrain for the part so occupied, and that A. was precluded in replevin from disputing his title {m). By a deed of settlement certain premises were conveyed to trustees for 1,000 years by way of mortgage, and subject thereto lands were settled to R. for life, with a power of leasing. R. executed a lease, in which she reserved rent to " a person or persons who for the time being should be entitled to the freehold or inheritance of the demised premises immediately expectant on the death of the said R." It was held that the assignee of the trustees of the mortgage term was the "person entitled to the immediate reversion expectant on the death of R.," and although not entitled to the freehold or inheritance, was, notwithstanding the reservation contained in the lease, entitled to distrain on the tenant for rent in arrear. Denman, C. J., obser\dng, " They {i.e. the trustees of the mortgage term) have not, as o"^Tiers of the estate, the free- hold or inheritance in the technical sense of those words ; but if they are entitled to the rents as the owners of the immediate reversion in a portion of the inheritance, the reservation of rent is sufficient to give them a legal interest in it, and they may distrain for the rent ; and as they have assigned their legal estate, the assignee may do the same " («). By the 14 & 15 Yict. c. 25, s. 1, a tenant, whose (I) Smith's L. & T. 316, (m) Clarice v. Waterton, 8 2nd ed. ; WoodfaU's L. & T. C. & P. 365. 383, 10th ed. ('0 Roc/ers v. Ilumjyhrcys, 4 Ad. & Ell. 299. COPARCENERS. 45 tenancy determines by tlie death or cesser of the landlord's Part I. estate, is entitled in lieu of emblements to continue to Chap. III. occupy until the end of the current year of the tenancy. It has been held that a " succeeding landlord " of a pre- ceding deceased lessor, who is entitled by this section " to recover and receive " a proportion of rent from the tenant, is justified in obtaining such rent by distress as well as by action (o). Having now treated generally of what is a sufficient reversion to support a distress, we will proceed to discuss more particularly the different classes of persons, who having this reversion, are enabled to distrain. Coparceners before partition are considered in law as (c) Copar- but one ]ieir{p), and therefore they cannot have several -^^^ -0111111 distresses for rent held in coparcenary. They may either making a join in making a distress {q), or one coparcener may dis- train alone for the whole rent, each having an estate in parcener may every part of it (r). No consent from the other coparce- "ii^train alone, ners need be previously obtained in order to authorize one other copar- coparcener to distrain alone, or alone to appoint a baihff ^eners not ^ ' -'■ -^ _ necessary. for the whole rent (r) . In the event of a reple\'in, how- j^ ^^^ ^^ ever, the avowTy must be, according to the natm-e of the replevin, estate, joint ; or the party distraining alone must avow in her own right for her owti share, and make cognizance as After parti- bailiff of the other coparceners («). But after partition they may make several distresses, and so may their grantees {t) . And even a rent-charge, although in its nature entire, and against common right, may be divided (0) Haines v. Welch and Bullen, 44. Marriott, L. E. 4 C. P. 91. (s) LeiyJiY. Shepherd, supra ; {p) Co. Litt. 16;3 b. BuHen, 44 ; AVoodf. L. & T. (y) Steadmaji v. Page, 5 12th ed. 394; Culley y. Spear- Mod. 141 ; SteadmanY. Bates, man, 2 H. Bl. 386. 1 Lord Eajru. 64. {t) Butler and Baker^ s case, (r) Leigh v. Shepherd, 2 3 Co. Eep. 22 b; Co. Litt. Brod. & B. 465; Robinson 164 b, 169 b ; Bullen, 45. V. Hoffman, 4 Bing. 562; 46 WHO MAY DISTRAIN. Tart I. Chap. III. Turtious acts of copar- ceners. between coparceners : and thus, by act of law, the tenant of the land may become subject to several distresses {u). But coparceners, after they have parted with their estate, cannot distrain for previous arrears (x). Wliere upon par- tition between coparceners, a rent issuing out of the lands descended (//) , is assigned to one for equality of partition, such rent is distrainable of common right, whether in the hands of the coparcener, or of her grantee, for it is annexed to the estate (z). Whatever rent accrues to coparceners as such, that is to say, whatever rent they are jointly entitled to in the com'se of coparcenary, partakes of the natm^e of their estate, and is subject to the same rules of distress {a). Thus, if there be three coparceners, and they make partition, and one of them grant twenty shillings per annum out of her part to her two sisters, and their heirs, for equality of partition, they shall have this rent in course of coparcenary, and shall join in an action for the same ; and as this rent is entire in its creation, they must join in a distress (^-i) . And if two coparceners by deed alien both their parts to another in fee, rendering to them and their heirs a rent out of the land, they are not joint tenants of this rent, but shall have it in coparcenary, because their right in the land out of which it was reserved was in coparcenary (e) . One coparcener cannot be deprived of her rights by the tortious acts of another : and, therefore, if there be two coparceners of a seigniory, and one of them disseise the (u) Bradly, 38 ; Bidlen, 45 ; Hhis V. Watson, 5 M. & W. 255. (x) Dixon V. Harrison, Vaughan, 52 ; Slaveley v. Al- coch, 16 Q. B. 636. See also Flesher v. Troiman, 6 L. T. N. S. 218. (y) Litt.ss.252, 253; Harg. note (1) on Co. Litt. 153 a; Co. Litt. 169. (z) Butler and Baker's case, supra. (fl) Bullen, 45. \h) Co. Litt. 169b; /S'/'?). And if sucli a rent were created at Chap. III. the present day without a power of distress, it would be a rent-seek, and as such attended with the right of distress under 4 Geo. II. c. 28 (o). (h) Tenant in tail. (i) Tenants fox' life. A rent-ser\ice may be reserved, or a rent-charge granted in fee tail, and in either case the tenant in tail of the rent is entitled to recover it by distress ; in the former case of common right, and in the latter by virtue of the clause in the deed {p). Although a tenant in tail makes leases not conformable to any of the Acts enabling him to do so (q), such leases are good as against himself, and therefore, as a reversioner, he may distrain, even at common law, for the rent reserved thereby (r) . On the conveyance of a life estate out of an estate in fee, a rent-ser\ice for life may be reserved, and will be distrainable as such at common law in respect of the rever- sion. In like manner a rent-charge distrainable by force of the clause in the deed, may be limited to a person for his own life, or for that of any other person, or for any number of Hves. In such cases the grantee of the rent- charge will be tenant for life, or tenant j^ur autre vie of such rent (s). Tenants for their o^wti lives, or jjur autre ■vie, or tenants in tail after possibility of issue extinct, have estates of freehold ; and therefore if they make a lease for years, or for the lives of others, reser'sing rent, they are entitled at the common law to distrain upon their lessee in respect of the reversion, which in contemplation («) Co. Litt. 143 b, note 5 ; and judgment of BuUer, J., in Bradbury v. Wriylit, 2 Doiigl. 624. (o) Sm. L. & T. 3rd ed. 121, note(y), andp. 122. See also 1 Selw. N. P. 13th ed. 558, note {i) ; and Vigers v. Dean of St. Paul's, 14 a B. 909. (;j) Bullen, 49. (9)3&4'\ViU.4, 0.74; 19 & 20 Vict. c. 120, s. 35, which repealed 32 Hen. 8, c. 28 ; 40 & 41 Vict. 0. 18 ; and 45 & 46 Vict. c. 38, s. 58, sub-s. 1 (i) and (vii). {r) Ex parte Smyth, 1 Swanst. 346, note ; Bradby, 48. (s) Bullen, 50. TENANTS FOR LIFE. 63 of law belongs to their respective estates. But if they Part I. make a grant which amounts to a disposition of their Chap. III. whole estate, reserving rent, they cannot of course distrain at common law for want of a reversion, unless a power of distress he especially reserved. But by the statute 4 Geo. II. •* ^reo. 2, 0. 28, such rent is now distrainable as a rent-seek (t). By statute 32 Hen. YIII. c. 37, s. 4, tenants pur autre vie 32 Hen. 8, may distrain for arrears due at the death of the cestui que ^' > ^' ' vie, in the same manner as they might have done at common law during his life (?^). And by the statute 8 Anne, c. 14, s. 6, it is enacted 8 Anne, c. 14, that " it shall and may be lawful for any person or persons having any rent in arrear, or due upon any lease for life or lives, or for years, or at will, ended or determined, to distrain for such arrears, after the determination of the said respective leases, in the same manner as they might have done, if such lease or leases had not been ended or deter- mined. Provided (r) that such distress be made within the space of six calendar months after the determination of such lease, and during the continuance of such landlord's title or interest, and dm-ing the possession of the tenant, from whom such arrears became due" (x). Where the lessee of lands dies before the expiration of Death of the term, and his administrator continues in possession expiratkm^of during the remainder of the term, and after the expiration term, of it, a distress may be taken for rent due for the whole term (y). A distress may be made after the expiration of the six months mentioned in the above statute, cku-ing the time that the tenant, according to the custom of the country, has the way-growing crop on the premises (z) . (t) Bradby, 49. See Lang- Distress Amendment Act, ford v. Selmes, 3 Kay & J. 1888 (51 & 52 Vict. c. 21). 220. (y) Braithwaite v. Cooksey, {u) Cruise, Dig. by White, 1 H.Bl. 465 ; Ntdtally. Staun- tit. "Eents," ch. ii. s. 10. ton, 4 B. & C. 51 ; Gray y. (v) Sect. 7. Stait, L. E. 11 Q. B. D. 668. \x) See sect. 4 of Law of (~) Beavan v. Delahay, 1 H. 54 WHO MAY DISTKAIN. Part I. A husband may be tenant by tlie curtesy of a rent- Chap. III. ser\ice where he is entitled as tenant by the curtesy to the (j) Tenants by reversion of the land out of which it issues, and he may the curtesy, clistraiu for such rent-service of common right. But a husband, unless he be tenant by the curtesy, cannot dis- train for rent which becomes due after the death of his wife under leases of her freehold made by both of them, or by him on her behalf {a). (k) Tenants in dower and freebench. Lands taken in lieu of dower. A woman may be endowed of a rent as well as of land, whether it be rent-service, rent-charge or rent-seek, and her right to distrain will follow the natm-e of the rent {b) ; but not of an annuity, because that only charges the per- son, and is not issuing out of lands and tenements {e) . A widow, to whom dower has been assigned by metes and bounds, may distrain for the subsequent part of that rent {d). If a rent be assigned to a widow instead of her dower, she may distrain for it, although she has no rcA^er- sion, and the rent was granted without deed ; for, as w^e have seen, such rent is in its nature distrainable of com- mon right {('). A tenant in dower is entitled to hold lands of the hus- band taken by her from the heir, in exchange for her dower, and may distrain on such lands of common right (/). A widow is entitled to a rent as her freebench by custom out of copyhold teniu-e. Where a cojDyholder in fee (there Bl. 5 ; Leivis v. Harris, note at p. 7 in above case ; Ncave V. Moss, 1 Bing. 360. (ff) Hoiue V. Scarrott, 4 II. & N. 723. See also ///// v. Saunders, 2 Bing. 112; BuUen, 51. {b) Co. Litt. 32 a. (c) Co. Litt. 144b; Bradby, 47.' (r/)Co.Litt29a,34b,144b; Stoughton v. Leigh, 1 Taunt. 410 ; Bradby, 47. (e) Co. Litt. 34 b, 169 b ; Bullen, 52. (/) Co. Litt. 34 b; Bradby, 48. As to the period when a tenant in dower becomes en- titled to distrain for rent of which she is endowed or dowable, see Buheu, pp. 52, 53. TENANTS UNDER EXECUTION. 55 being a custom for a widow's estate) made a lease by Part I. licence, reserving rent to himself and bis vnle during tbeir Chap. III. lives, and to his heii's, it was decided that the wife should have the rent, after her husband's death, with a power of distress as for other copyhold rents {[/). Tenants by elegit, or by statutes merchant, or staple, (1) Tenants have so far an estate in the rent of land taken in execu- ^j^^ execu- tion as to be able to distrain; although from the nature of their estate they can only have an uncertain interest in the reversion {//). In the case of a rent-charge, the clause In case of of distress attached to the grant or reservation follows the ^'^^ '^ ^^^^' rent into whatever hands the rent itself passes ; and in the In case of case of a rent-service, such tenant is entitled for the time being to the immediate reversion. rent- service. A tenant by elegit is not within the statute 32 Hen. Tenants by YIII. c. 37, which gives a right of distress to tenants ^iw autre vie after the death of the cestui que vie. And therefore where there was judgment against the tenant for life of a rent-charge, and a moiety of the rent was taken in execution under an elegit, and more rent being in arrear, the tenant for life died; it was held that the tenant by elegit could not distrain for the arrears accrued before the tenant for life's decease, he not being named in the statute, nor coming in under the party, but by act of law (?) . But it seems that a tenant by elegit does come within the terms of the statute 4 Anne, c. 16, s. 9, and that consequently he has a right to distrain without attornment [k) . {y) Sacheverell v. Frograte, (?) Pool v. Neel^ 2 Sid. 28; 1 Vent. 163; Laugher y .Hum- Bradby, 50. phrey, Cro. Eliz. 524 ; Com. {k) Lloyd v. Davies, 2 Excli. Dig. " Eent " B. 5. 103; /S/r Thomas CamphelV s [li) Bro. Dist. pi. 72 ; Fool case, Eoll. Abr. tit. Execu- V. Neel, 2 Sid. 29 ; Dlghton v. tioii (B) ; Bishop of BristoVs Greenvill, 2 Vent. 327 ; Cor- case, 3 Leou. 113. Lett's case, 4 Eep. 82. elegit. 66 WHO MAY DISTRAIN. Part I. The right of distress follows the nature of the estate in Chap. III. the land or in the rent, whether an heii' be the heir of a (m) Heirs. tenant in fee simple or fee tail, or whether he take by descent at common law, or by custom ; so that it is always necessary, in order to determine when an heir shall have a rent, and a power of distress for its recovery, to consider the terms of the grant or reservation under which he claims and the nature of the ancestor's estate either in the rent or in the reversion of the land out of which it is reserved (/). "Whenever on a grant of lands of which the grantor is seised of an estate of inheritance, a rent-service is properly reserved specifically or generally durinrj the term, all the rent wliich becomes due, even an hour after the ancestor's death, goes with the reversion to the heir, and this applies to rent-charges and rents-seek i^m). If the rent be not specifically reserved, the law will distribute it according to the estate. And if the reservation is bad, the law in general will not suffer it to destroy the rent, but carrj^ it along with the estate to him to whom the reservation should have been made {n). When the heir is entitled to a rent, he is also entitled Nomine poence. to all its incidents, and therefore a '' nomine poence'^ (or penalty to oblige the tenant to pay the rent punctually) will descend to him (o). But arrears of rent accrmng in [I) Bullen, 59. As to re- Oaies v. Frith, siqu-a ; Cother servations of rent-service and v. Merrick, supra ; Bland v. the construction of such re- Inman, Cro. Car. 288 ; Rich- servations, see Cother v. Mer- mond v. Butcher, Cro. Eliz. r/cZ-, Hard. 91; Stafford's case, 217 ; Co. Litt. 148 a. n. (1); Dyer, 252 ; Oates v. Frith, Stafford'' s case, Dj-er, 253 ; Hob. ISO ; Randall Y. Jenkins, see also Pilkinton v. Dalton, 1 Mod. 110; Sacheverell v. Cro. Eliz. 575; Chin's case, Frograte, 2 Saund. 367, and 10 Co. Eep. 127 (a); Anon, notes. See also Com. Dig. 2 ; Shower, 77. tit. Eent (B), 5. (o) Co. Litt. 162 b ; Gilb. (m) Bullen, 58. Eents, 144; Bendlossv. Phil- (n) Darrell v. Wilso7i, Cro. lips, Cro. Eliz. 895 ; Bradby, Eliz. 644; Co. Litt. 214 a; 59. EXECUTORS AND ADMINISTEATORS. 57 the life of tlie ancestor belong to the personal representa- Part I. tives of the ancestor, and not to the heir. Chap. III. A rent-charffe, not of inheritance, and all chattels real, (n) Executors ,■,..,, . , ? T 1 ^^^ adminis- wiU go on the testator s or intestate s death to the executor trators. or achninistrator, together mth the remedy of distress for the recovery of all rent accruing after such death (p). Where a lessee for fifty 3'ears underlets for twenty years, reser\'ing rent, and dies dming the latter tenn, the rent and reversion "u-ill vest in his personal representatives, who may then distrain at common law for the arrears of rent that became due in the lifetime of the deceased (q) . At common law neither the heirs nor the personal repre- sentatives of tenants in fee, fee tail, or for life, of a rent- service, rent-seek, or fee-farm rent, could distrain for arrears incurred in the lifetime of the OTSoiers of such rents (r) . But by 32 Hen. YIII. c. 37, s. 1, "the executors and 32 Hen. 8, administrators of every such person to whom any such rent or fee farm shall be due, and not paid at the time of their deaths, may distrain upon the lands chargeable with the payment thereof, in like manner as the testator himseK might have done in his lifetime, so long as the lands re- main in the possession of the tenant, who ought to have paid the rent, or fee farm, or of any other person claiming by and from him by purchase, gift, or descent." Section 4 of the same statute (s) enables executors and administrators of tenants 7;?o' autre vie, as well as such tenants themselves, to distrain for the arrears due at the death of the cestui que vie, upon the lands and tenements out of which rents or fee farms issue, in the same manner as the tenants 2^u.t' (;j) Bullen, 60, 61 ; Druce Abr. 672, tit. Distress (0), V. Bailey, 1 Tent. 275 ; Sack- 13; Bradby, 56. everell v. Froyate, 2 Saund. (?•) Co. Litt. 162 a. 371, note 7. («) 32 Hen. 8, c.37; see also {q) Wade v. Marsh, 1 Eoll. 8 Anne, c. 14, ss. 6, 7. 68 WHO MAY DISTRAIN. Part I. autre vie might have clone duriug the life of the cestui Chap. III. que vie. To what the This statute has been considered a remedial law, and tends. " li^s been decided to extend to the executors and adminis- trators of all tenants for life, as well tenants for theii* own lives as tenants ^:)?«' autre vie (/). But the executors and administrators of persons entitled to rent-charges for terms of years are not within this statute, for they are not tenants in fee, fee tail, or for life of such rents {u) ; and it was formerly held that, if a person seised in fee demised land for years, reserving rent, such rent was not within the statute, and his executors or administrators could not distrain after his death for arrears of rent incurred in his lifetime (x) . 3 & 4 Will. 4, But now, by the 3 & 4 Will. IV. c. 42, s. 37, it is ^" "' ^' * enacted that " the executors or administrators of ani/ lessor or landlord may distrain upon the lands demised, for any term, or at ivill, for the arrears of rent due to such lessor or landlord in his lifetime, in like manner as such lessor or landlord might have done in his lifetime " ; and by sect. 38 (_?/), "such arrears may be distrained for after the end or determination of such term or lease at will, in the same manner as if such lease had not been ended or de- termined ; provided that such distress be made within six months after the determination of such term or lease, and dming the continuance of the possession of the tenant from whom such arrears became due ; and also provided that all and every the powers and provisions in the several statutes made relating to distresses for rent shall be ap- plicable to the distresses so made." In all cases, therefore, where the testator or intestate was seised of a rent of any kind, either in fee simple, fee tail, or for life, his executors {t) Hood v. Bell, 1 Lord 471. Eaym. 172 ; Co. Litt. 162 a, (.r) Prescott v. Boucher, 3 162 b ; Harg. notes, 298, 299 ; B. & Ad. 849 ; Jones v. Jones, Bradby, 51. 3 B. & Ad. 967. (?<) lurnery. Lee, Cro. Car. (?/) 3 & 4 Will. 4, c. 42. EXECUTORS AND ADMINISTRATORS. &9 or administrators may distrain for tlie arrears incurred in Part I. his lifetime under the operation of the statute 32 Hen. YIII. Chap. III. c. 37 ; and for all arrears of rent-service incurred in his life- time on a lease for years, or at mil, they may distrain under the statute 3 & 4 Will. IV. c. 42 (s). These provisions apply only to cases where the owner of the rent, if he had lived, might have distrained himself ; and, therefore, if the rent be in arrear, and the owner grant away his interest, and die, his executors or administrators have no right of distress for those an-ears (a). By the words of the statute 32 Hen. VIII. c. 37, the distress must be made whilst in the possession of the " tenant in demesne," or some person claiming under him by pui'chase, gift, or descent ; and, therefore, it extends to the possession of those persons only who claim under the tenant, and does not comprise the lord claiming by escheat, tenant in dower, or by the curtesy ; for they come in not under the party but by act of law [b). And in case of a rent-charge, it has been decided that if a tenant in tail grants a rent for life and dies, the execu- tors of the grantee cannot distrain for any arrears upon the issue in tail, because the issue in tail comes in under the original gift in tail, and consequently by title paramount to the tenant in demesne (c) . The cases as to the question on whose possession exe- cutors and administrators may distrain for arrears, do not apply to estates 2^t(r autre vie. So that if a man grant a rent-charge to A. for the life of B., and make a lease to C. for life, remainder to D. in fee, and the rent be in aiTear, and then B. dies, and afterwards 0. dies also ; A., or his (s) Bullen, 64. on this statute, see Biillen, (ff) Co. Litt. 162 b; OffneVs 65, 66. case, 4 Co. Rep. 50 b ; Dixon (c) Lord Fairfax v. Lord V. Harrison, Yaughan, 40. Derby, 2 Vern. 612; Lambert {b) Co. Litt. 162 b; 1 Leon. v. Austin, Cro. Ehz. 333. 307 ; for other cases decided 60 WHO MAY DISTRAIN. Part I. Chap. III. All arrears of rent are within iho statute. But not cor- poral services. Bailiff's authority to distrain after death of testator. Eights of executors and administra- tors inter se. executors or administrators, may distrain upon D. in re- mainder for all the arrears {-). Even at common law before the Statute of Wills (s), devisees by custom might distrain for rent without the necessity of the tenant's attornment, because the will of (m) 3 Bac. Abr. 30, tit. (;j) Woollerj v. Clark, 5 B. Executors (D), 1. & Aid. 715, 746. (n) Dyer, 23 b ; Com. Dig. {q) licx v. Horsletj, 8 East, Administration (B), 12; Bui- 410. len, 67. {■>•) Sacheverell v. Frogate, (o) Keane v. Dee, 1 Alcock 1 Vent. 164 a. & Napier, 496, n. (Irish). (s) 32 Hen. 8, c. 1. 62 WHO MAY DISTRAIX. Part I. the testator miglit otlierwise have been defeated (/) . "Where Chap. III. a rent-service is devised or bequeathed without mention of Devise or the land, the hand itself will pass, unless a contrary inten- renr-lervkie ^^"^^ appears {u) ; and it will continue a rent-service and distrainahle as such in the hands of the devisee or legatee (x). Where a rent-ser\dce is debased alone, expressly, without any estate in the land, it was formerly necessary for the devisor to give a power of distress in order to entitle the devisee to distrain (//), but this will now be a rent-seek, and therefore distrainahle in the hands of the devisee under the statute 4 Geo. II. c. 28, s. 5. A rent-ser\'ice reserved on an underlease of a chattel real, and bequeathed apart from any interest in the land, is, however, a mere personal annuity {z). In all cases where there is a unity of possession in the rent and the land out of which it issues, it becomes a ques- tion, whether by means of it the rent is extinguished, or only suspendecl. And in the bequest of a chattel this question may arise, not only mth respect to a imity of possession in the testator, but even in his executor. So where a man by his will bequeathed to his wife a term of years, so long as she should remain unmarried, and after her marriage a rent payable out of the same lands, and he made her his executrix ; it was held that, although the whole term vested in her as executrix, this did not ex- tinguish the rent by unity of possession (a) . It may be remarked that a devise vests absolutely by the testator's ^ill, and the devisee becomes immediately entitled to distrain for any rent subsequently accruing ; whereas, in the case of a legacy, the interest of the legatee must await the executor's assent to the bequest ; for until {t) Litt. ss. 585, 586. (y) Goiiffe v. Hayward, {u) Kerry v. Derrich, Cro. Bridgm. 54. Jac. 104; Maundy y. Maundy, (z) Bullen, 69. 2 Stra. 1020; Allan v. Back- (a) Gouge v. Hayward, house, 2 Yes. & Beam. 74. sujn-a ; 1 EoU. Abr. 610. {x) Bullen, 69. TRUSTEES. 63 sucli assent, the interest remains in tlie executor, and the Part I. legatee cannot distrain (b). Chap. III. Trustees, and persons who have vested in them the legal (p) Trustees, estates in trust for others, as the trustees of a bankrupt, including trustees making leases imder special powers, or by virtue of any Act of Parliament, may distrain for rent in respect of such estates in the same manner as if they were themselves beneficially interested therein (c). A lord of a manor may of common right distrain in (q) Lords of manors and commoners. respect of his seigniory, and also in respect of his cojiyhold ^^^^^"^ ^"'^ rents ; for, as we have observed before, such a rent is in its very nature rent-service (d). The lands are chargeable in the hands of anyone claiming under the copyhold tenant ; but not of a new tenant admitted to the copyhold for arrears clue from his predecessors (e) . If the lord part with his manor, all privity of estate between him and the copyhold tenants is destroyed, and therefore he cannot distrain for ari'ears of rent pre\dously incurred (_/). Copyhold rents are not within the statute 32 Hen. YIIT. c. 37, which gives a remedy by distress for arrears of rent to executors and administrators (g). They are, however, within the statute 4 Geo. II. c. 28, s. 5 {/i). A lord of a manor may also become entitled to distrain 'Ri^'ht to dis- by reason of escheat ; therefore, if a tenant lease for Hf e, ^^^^ e"scheaj rendering rent to himself and his heirs, and dies without (5) Bradby, 60. 31. (f) BuUen, 71. "WTaere one (d) Laugher v. Humphrey, of the trustees disclaimed by Cro. Eliz. 524. deed, such disclaimer was held (e) 2 Watk. on Cop. 180. sufficient to vest a complete (/) 2 Watk. on Cop. 180, title in the other trustees, so 181, 182. as to enable them to support {g) Appleton v. Doihj, Yelv. a distress for rent on the 135; Sands v. Hempsion, 2 premises devised; Beghie v. Leon. 142; Bullen, 58. Crooh, 4 L. J. C. P. 264 ; (A) Bullen, 58. Toicnson v. Tickell, 3 B. »& A. 64 WHO MAY DISTRAIN. Part I. lieii-s, so tliat the reversion escheats to the lord, and after- Chap. III. wards the rent is in arrear, the lord may distrain ; for the rent is incident to the reversion, and goes with the rever- sion into the hands of the lord (/). Commoners' right to dis- train inter se. Colour of riffht. Where two commoners agree to their mutual advan- tage not to exercise their respective rights for a certain term ; it was held that one might distrain the other's cattle damage feasant during that time (A). In case of an absolutely stinted common in point of number, one commoner may distrain the supernumerary cattle of another ; but not if an admeasurement be neces- sary, or where the stint has relation to the quantity of common land ; and a commoner cannot distrain where the o^^^ler of cattle has any colour of right to put them on the land, as that would be taking to himself jui-isdiction as to the competency of such right : but if there be no pretence or shadow' of right, as in the case of a stranger's cattle, the commoner may always resort to distress. This was decided by the case of Rail v. Harding (/), which held that any colour of right in the ownier of sheep trespassing upon a common was a good ground for replevin. In this case Lord Mansfield observes (^>?) : "Where the lord, or the other commoners, have a colour of right, the question whether he has exceeded that riglit must be determined by an indifferent and competent jurisdiction, and not by the commoner himself. Tho commoner cannot therefore law- fully distrain, for that would be making himself his own judge in a matter that was uncertain in itself, and taking an immediate execution on his own judgment. The levancy and couchancy — where that is the measure of the commoners' right— must be tried and determined by a jury ; and in the present case, where the nnmber of cattle (i) Litt. s. 348; Co. Litt. {I) 1 W. Black. 673, up- 215 b; BuUen, 57. holding Dixon V. James, 2 (A-) Whiteman v. Kiiuj, 2 Lutw. 1241. H. Black. 4. (w) At p. 2432. COMMONERS. 65 to be j)ut on depends upon the number of the commoners' Part I. acres, the same jurisdiction must decide between them (^hap. III. 'what number of acres the commoner is really possessed of.' It is in effect the same object of inquiiy as levancy and couchancy; and it is now established that where the right of common is for cattle levant and couchant, one commoner cannot distrain the cattle of another for a sup- posed overcharge" {n). A claim of a custom from trine immemorial that cattle upon adjoining commons strayed upon one to the other, is a sufficient colour of right to deprive a commoner of one common of the remedy of distress against trespassing cattle of a commoner of the adjoining commons, even though the latter has sui^charged his own common (o). A private Act of Parliament for the inclosure of a com- mon, and an award by the commissioner under that Act, that all rights of common shall be extinguished, does not render the cattle of commoners ^'par cause de vicinage^^ liable to be distrained damage feasant, unless the locus in quo has been completely fenced, or such commoners have had express notice of the extinguishment (7;). A right of common appmienant for cattle levant and Suspension couchant, proved by acts of user for thirty years, and exer- tion of a right cised in respect of a tenement formerly in a condition to °^ common, support cattle, but then, and for more than thirty years past, turned to different purposes, was held not to be extinguished or suspended by reason of such change in the condition of the tenement, if the tenement was still in such («) Levancj and couchancy Willes and Keating, JJ., in is a mere measure of the Johnson v. Barnes, L. E. 7 number of cattle or other C. P. 592. animals that may be put upon (0) Cape v. Scott, L. P. 9 a common: it does not ueces- Q. B. 269. sarily indicate appurtenancj, (/>) WellsY.Pearcy,AJj.Z. i. e. refer to cattle actually fed C. P. 144. upon the particular land — per O. F 66 WHO MAY DISTRAIN. Part I. a state tliat it miglit easily be timied to tlie purpose of Chap. III. feeding cattle («/). By tlie 11 Greo. II. c. 19, s. 8, a landlord may distrain cattle of tlie tenants depasturing upon any common or ■way appertaining to the premises demised. Mortsrafjora As tlie subject of distress by mortgagor and mortgagee ^ees"^°^*°^" i® extensive, we have thought it better to treat upon it in a separate chapter (r). (r) Annui- J^ mere annuity cannot in general be distrained for (.s) , as it is a yearly payment of a certain sum of money granted to another, and charged only on the 2)erso)i of the grantor ; Distinction in wliich respect it is distinguishable from a rent-charge, annuUy and a ^liich is a rent imposed upon, and issuing out of land. rent-charge. But it may be distrained for where the deed creating it expressly confers a power to distrain (t). If an annuity be granted out of an estate, and the grantor, to secure the payment, vests tbe estate in trustees for a term, to the use of the annuitant, and subject thereto continues in possession, the annuitant may distrain for the arrears ; for supposing the term to have given him the reversion, the grantor is to be considered as his under- tenant, upon whom he might, as reversioner, distrain at common law(?/). Where a testator granted an annuity or rent of 30/. to the defendant, with a power of entry and distress if the payment remained behind a certain time, payable in the first instance out of certain leasehold pro- j^erty then in his possession, and, if the leasehold proved inadequate, his freehold premises were rendered liable to the payment with the same powers, &c., and the defendant distrained in the first place on the freehold premises ; it was held that the plaintiff was bound to give evidence of (q) Carr v. Lamhert, L. E. (/) Chapman v. Beecham, 3 1 Ex. 168. Q. B. 723. (r) Post, Chap. IV. («) Fairfax v. Gray, 2 W. (s) Co. Litt. 32 a, 144 b. Black. 1326. ANNUITANTS. »' the possession of the leaseholds at the time of his death, Part I. and not merely at the time of making his mil (x). Chap. III. In an action of replevin the defendant made cognisance for arrears of an annuity under a power of distress in an annuity deed. The plaintiff pleaded in bar a prior grant of an annuity, containing for a money consideration a grant, bargain, sale, and demise of the premises for a term unexpired, for securing the payment of the annuity, but did not allege cutri/ or election, or that he was in under the grantee ; it was held that the term of years so set up in the plea was no answer to the cognizance under the subsequent annuity deed, and mthout an entry was no bar to the distress (y). A testator gave an annuity to his son T., and his realty and personalty to J. absolutely, subject to this annuity and other expenses. T. filed a bill and moved for a receiver, and it was held that T. had a power of distress, and his remedy was at law (z). Where an annuity was charged upon land after the death of the annuitant, and a propor- tionate part was to be paid to her legal representative, and after the death of the annuitant, 10/., the amount which was due, was paid to her husband, who took out no letters of administration to her, and on liis death /u's executor took out letters of administration to the annuitant ; it was held that as he was the only legal representative of the annuitant he was entitled to distrain upon the lands for the proportion of the annuity due at the annuitant's de- cease, and the payment of the 10/. to the husband could not be taken into account {a) . (x) James V. Salier, SBing. (z) Sollory v. Leaver, 21 N. C. 505. For the period in L. T. N. S. 453, upholding which a distress for arrears Buttery v. Robinson, 3 Bing. of an annuity must be made, 392. &Qe post, p. 180. («) Mitchell v. Holmes, 28 (y) Miller v. Green, 2 L. T. N. S. 72; Mitchell v. Cromp. & J. 142. Moorman, 1 You. & Jer. 21, f2 68 WHO MAY DISTRAIN. Part I. Chap. III. (s) Grantees of rent- charges. Distress by assignee of a rent -charge. As we have said before {b), the grantee of a rent-charge can distrain for arrears of rent when empowered to do so by deed ; and in the absence of such a power under tlie provisions of the 4 Greo. II. c. 28 (r) ; but a rent-charge with a power of distress cannot be created, except by a grant binding some legal interest in the land ; and it ceases to exist when the same person who is owner o the rent becomes entitled to the whole legal estate in the land out of which it issues {d) . A de^ise of lands to A. for life, remainder to B. in fee, subject to and charged mth the papnent of 20/. to C. dming her life, to be paid by A. as long as she should live, and after her decease to be paid by B,, is a charge on the land for which C. may distrain {e). The assignee of a rent-charge may distrain for arrears thereof which become due after the assignment (/), but not for pre\4ous an-ears {g) . On the other hand, the grantee of a rent- charge cannot di\^de his demand, and distrain for part on one part of the land, and afterwards for the residue on the other {//) ; for a man who has an entire duty cannot split the entire sum, and distrain for part of it at one time, and for another part at another time, and so on, ^' fodes quoties" [i). And although the power of distress is nugatory, it appears that {b) Ante, p. 15. (c) Dodds V. Thompson, L. E. 1 C. P. 133. (d) Freeman v. Edwards, 2 Exch. 732. (e) Buttery v. Robinson, 3 Bing. 392. (y) Matmd^s case, 7 Co. Pep. 28. {g) Brown v. Metropolitan Counties Life Assurance So- ciety, 1 E. & E. 832. See also In re Davis ^' Co., Ex parte Rawlings, W.^N. 1888, p. 236. (/*) Owens T. Wynne, 4 El. & Bl. 579 ; Wallis v. Savill, 2 Liitw. 1532. (j) Per Wightman, J., in Owens V. IVynne, supra, who distinguishes 7?u-/s v. Watson, 5 M. & W. 255, ante, pp. 46, 51, saying, that that case was no authority that he to whom an entire demand was due could sjilit it up and distrain for part on one part of the land ; it u-as an authority that the right to the rent might be divided, and then at the time when rent became due, it was no longer an entire de- mand. GRANTEES OF RENT-CHARGES. 69 the rent-charge may be available for other purposes (k) . Part I, The interest of a mortgagor in possession is not a legal Chap. III. estate at all, and consequently cannot support a rent- charge with powers of distress. So a grant purporting to be the grant of a rent-charge, with powers to distrain made by a person having a legal estate in the land, may operate as an irrevocable licence by the grantor to seize such goods as may be on the land at the time the grantee seizes, and to treat them as a distress ; and may therefore justify the seizm-e of the goods of the grantor himself, and give the grantee an interest in them after seizm-e ; but it does not give any interest in the goods of the grantor before seizure, and does not justify the seizure of the goods of third persons at all (/). Where a mortgagor, who had the equity of redemption in fee, and the mortgagee, the legal owner of lands in fee, conveyed the lands to the second mortgagees and their heii's with a power of sale, and there was a pro\'iso in the deed that in the event of the second mortgagees, or of anyone claiming under them, entering under that power, the land should thenceforth for ever be charged ^vith the pajTuent to the mortgagor, his heirs and assigns, of an annual sum of 40/., recoverable by distress, which deed was not executed by the second mortgagees, who, in default of payment, entered the lands, and sold them to A., subject to this annual sum, who himself entered and subsequently conveyed the land to the plaintifi, in the meantime paying the mortgagor the annual sum ; and the rent-charge afterwards vested in the defendant, who distrained for the same ; it was held that the defendant was justified in dis- training, as the rent-charge was well created, and vahd at law, under the Statute of Uses (in), and that it was not void as commencing at a period too remote, and so contra- {k') Daivsrm v. Hobbins, (I) Gilbert son v. Richards, L. E. 2 C. P. D. 38 ; Dodds 5 H. & N. 453. v. Thompson, L. E. 1 C. P. (m) 27 Heu. 8, c. 10, 133. 70 WHO MAY DISTRAIN. Part I. vening the riile against perpetuities (ii). By the Convey- Chap. III. ancing and Law of Property Act, 1881 (o), it is provided Conveyancino- tliat " where a person is entitled to receive out of any land Act, 1881. jj^jjy annual sum, payable half-yearly or otherwise, whether charged on the land, or on the income of the land, and whether by way of rent-charge or otherwise, not being rent incident to a reversion, then subject, and without pre- judice to all estates, interests, and rights having priority to the annual sum, and so far only as might have been con- ferred by the instrument under which the annual sum arises, the person entitled to receive the annual sum may, if at any time the same, or any part thereof, is unpaid for twenty-one days next after the tune appointed for pay- ment, enter into and distrain upon the land charged, or any part thereof, and dispose according to law of any dis- tress found." (t) Owners of The rent-charges created under the various Acts for the tithes. commutation of tithes are of a somewhat anomalous nature, and the remedy by distress differs in some respects from that given for the recovery of ordinary rent- charges : we have therefore thought it better to deal with this subject Objections to separately. Tithes are of a very ancient origin, and their tithes. incidence on property having become objectionable to the nation at large, it was thought better to provide some means by which these objections might be remedied, and at the same time to seciu'e to the owners of the tithes the rights and properties to which they were legally entitled. G & 7 Will. 4, This was effected by the Tithe Commutation Act (6 & 7 ^' ' ' Will. IV. c. 71), and the various statutes passed for its ^ro^-isions of amendment ( p) . They provide that the commutation may (n) Gilhertson v. Richards, 2 & 3 Vict. c. 62 ; 3 & 4 Vict. supra. c. 15 ; 5 & 6 Vict. c. 54 ; 9 & (o) 44 & 45 Vict. c. 41, 10 A'ict. c. 73 ; 10 & 11 Viet, s. 44, sub-ss. 1, 2. c. 104; 23 & 24 Vict. c. 93; (p) These are 7 Will. 4 & 36 & 37 Vict. c. 42; 41 & 42 1 Vict. c. 69 ; 1 & 2 Viet. c. 64 ; Viet, c 42. OWNERS OF TITHES. 71 be effected in two ways ; either by a voluntary parocliial Part I. agreement entered into by a certain proportion of the t/nap. ill. parties interested, and confirmed by the Board of Com- the various missioners, to whom this subject has been entrusted (5-), ^^^.tutes. or else by compulsory award. And for this latter purjiose, the Commissioners were requii'ed to take, as the basis of the commutation (with certain exceptions), the clear average value of the tithes of the parish, or of the composition pay- able for the same, where they had been compounded for, for the period of seven years ending at Christmas, 1835 (r). The payments to the former tithe owner under such com- mutation are to bo lialf-yearly, and the amount thereof is to fluctuate according to the price of corn (.s). But the points in wliich the rent-charges thus created Difference differ from ordinary rent-charges are, that they are uni- j,ent^char) ; for if they be underlet for years, or at will, the under-tenant's effects are not liable to the Crown {q) ; but if the tenant of the Crown makes an underlease after the arrears of rent accrued due, the Crown has a right of distress upon the lands of its under-tenant (;•) . Where claims of the Crown and of a subject as creditors come into competition, the prerogative right of the Crown to priority is not limited to proceedings by "writ of extent, but equally attaches in proceedings by distress, although the distress put in by the Cro^-n is subsequent in date to that of the subject, provided that the distress put in by the subject has not been completely executed by actual sale (.s) . The Crown, by virtue of its prerogative, may also dis- The Crown train on the highway {t) . ^n tht'ldgh^ ■way. The grantees of the Crown also have some peculiar Qrantees of the Crown. («) Co. Litt. 309. " Prerog." ; F. Bac. Abr. (o) Bro. "Prerog." pi. 77. ''Prerog." (E), 3; Chitty, • {}}) 4 Inst. 119; 2 Inst. jun. on Prerogatives, pp. 208, 132. 209. {q) Bro. Abr. "Prerog." (r) 1 Eoll. Abr. 670. pi. 68, 77; 3 Leon. 124; {s) Att.-Gen.Y. Leonard, ZB Warden and Commonaltij of Ch. Div. 622. Sadlers' case, 4 Co. Eep.' 56; {t) 2 Inst. 131. 16 Yin. Abr. 513, 514, tit. G 2 84 WHO MAY DISTRAIN. Part I. privileges witli regard to distress {k) ; for at tlie commou Chap. III. law, if the Crown granted to its subject a reversion or services, it passed immediately without attornment, and the grantee might distrain {x), unless it were of lands held of the Duchy of Lancaster, and not situate within the County Palatine {>/). The statute 22 Car. II. c. 6 (for the sale of the fee-farm rents of the Crown) gives to the vendees of such rents the same remedies for the recovery of them as were possessed by the Crown ; and, therefore, they may distrain upon all the lands of the original grantor. And either the Crown or its vendees may make such a distress, although the lands distrained upon be under a sequestration (:;) ; but this statute only extends to fee-farm rents sold under its authority ; and, therefore, the Crown's grantee of a rent- charge cannot now, any more than he coidd at the com- mon law, distrain on any other lands than those upon which the rent is charged [a). With these excej)tions corporations sole do not possess any peculiar rights, or lie under peculiar disabilities with regard to the power of distress, but fall under the general principle of distraining according to the nature of their estate {b) . 2. Corpora- Corporations aggregate, whether civil or ecclesiastical, tions aggre- cannot, as a general rule, perform any act in pais, except under their common seal (c) ; and therefore they must both make and accept leases, or other conveyances of land, and (m) a distress cannot be of Lanca sterns case, 4 Inst, levied for sewer rates within 209; Chitty, jun. on " Pre- the lirecincts of a royal palace rog." 209. occupied as the residence of (s) Att.-Gen. v. Mayor of the sovereign, and Kensing- Coventry, 2 Yern. 713. ton Palace is within this de- («) Bro. " Prerog." pi. 68, scription; Att.-Gen.y. Donald- see Statham, Abr. "Distress," son, 10 M. & "W. 117. pi. 2; Bradby, 63. \x) Bro. Abr. "Prerog." {h) BuUen, 77. pi. 68; 16 Yin. Abr. 513, {c) Mayor of Thetford's 514 ; 1 Poll. Abr. 294. case, 1 Salk. 192 ; Arnold v. (y) Co. Litt. 341 b ; Dtichy Poole, 4 M. & G. 860. CORPORATIONS. 85 grants of rent, under such seal. But if a lease be made Part I. by an agent of a corporation, not under their common seal. Chap. III. although it be invalid as a lease for want of due execution, yet, if the tenant hold under it, and pay rent to the bailiff of the corporation, that is sufficient to constitute a tenancy at least from j^ear to year, and to entitle the corporation to distrain for the rent (r/). Where leases are made by cor- porations aggregate or sole, whether or not they are made conformable to statutory provisions, so as to bind the suc- cessor, the remedy of distress, at least with respect to the lessor, is the same as belongs to such a lease at common law. For tliough leases contrary to these Acts are declared void, yet tliey are good against the lessor during his life, if he bo a corporation sole ; and also against an aggregate corporation, so long as the head of it lives, who is presumed to be tlic most concerned in interest (c). Therefore, if good against the lessor, they would generally be good against the lessee by mutuality of estoppel (,/'). By 4 Geo. II. c. 28, s, 5, bodies politic and corporate are placed on the same footing as other persons with respect to the recovery of rents-seek, cliief rents, and rents of assize. A corporation may appoint a bailiff to distrain mthout Power of deed or warrant (,(/). And this also a2:)plies to distress apmliS; T^ damage feasant {/i). And a corporation is liable in tort bailiff. (f/) Decai and Chapter of Dujfield, 3 M. & S. 247; 1 Rochcstei- V. Pierce, 1 Camp. Kyd on " Corp." 263 ; Wood- 466 ; Furley and Mayor of fall's Landlord and Tenant, Canterbury v. Wood, 1 Esp. 10th ed. p. 17. 198; R. V. Chipping Norton, (e) 2 Black. Com. 321. 5 East, 239, 242 ; Southwark (/) Bradby, 64. Bridge Compant/ x. Sills, 2 C. (y) Careyy. JIatheics, I Salk. 6 P. 371; Smith v. Barrett, 191. Sec 2}ost, j)p. 207, 208, 1 Sid. 162; Patrick v. Balls, 211—213, as to the necessity Carth. 390 ; JJ'ood v. Tate, 2 of bailiffs to be certified. New P. 247 ; Carter v. Dean (h) Manhy v. Long, 3 Lev. a7id Chapter of Ely, 7 Sim. 107 ; Bac. Abr. Corporations 211,217; Bird Y. Bigginson, (E), 3, vol. ii. p. 265, ed. 6 A. & E. 824; li. V. North 1832. 8Q ^VHO MAY DISTRAIN. Part I. Chap. III. 3. Parish officers. for the tortious acts of its agent, though not appointed by seal, if such act be an " ordinary service," such as a distress professedly made under a statute for a debt due to the corporation ; and the jury may infer the agency from an adoption of the act by the corporation, as from their having received the proceeds of the seizm^e (/). The real property belonging to parishes is vested in the churchwardens and overseers of the poor for the time being, as a quasi-corporation, by the statute 59 Greo. III. c. 12, s. 17, and they are entitled to make leases of these lands. This Act does not extend, however, to cojiyholds (k). Under it chiu'chwardens and overseers are a corporation of a peculiar kind. They may take by demise without acceptance under seal, and any one of them may authorize a distress for the rent (l). Sequestrators appointed by the Comi of Chancery appear to stand on the same footing vdth. regard to distress as receivers {m). By the 12 & 13 Vict. c. 67, a sequestrator is empowered to levy any distresses in his own name for the recovery of tithes, tithe rent- charge, or rent, &c., payable to the incumbent of the sequestered benefice, A sequestration issued by a bishop under the statute 1 & 2 Yict. c. 106, though partly in the nature of a distress, is partly in the natm^e of a penalty {n). (i) Smith V. Birmingham and Staffordshire Gas Light Compamj, 1 Ad. & Ell. 526; Church V. Imperial Gas Com- 2mny, 6 Ad. & Ell. 861. Qi) Doe d. Bailey v. Foster, 3 C. B. 215. (/) Smith V. Adkins, 8 M. & W. 362; Gouldsxcorth v. Elliott, 11 :M. & W. 337; Smith's L. & T. 3rd ed. 73, 74, note («) ; Woodf . L. & T. 10th ed. 67. See post, Chap. XIII. (m) Woodfall's L. & T. 10th ed. 393 ; Cornish v. Sear- all, 8 B. & C. 471 ; but see Hall V. Butler, 10 A. & E. 204. (») Bonaker v. Evans, 16 Q. B. 162. 87 CHArTER IV. WHO MAY DISTRAIN IN THE CASE OF MORTGAGES, BANK- RUPTCY, AND THE WINDING-UP OF COMPANIES. The question of how far the execution of a mortgage (a) Mort- affects tlie right of distress is one of great difficulty, and ^^^^^' has led to very many decisions. It therefore becomes necessary to consider the position of the mortgagee and mortgagor as between themselves, and also their position where tenancies have been created with third parties, either previously or subsequently to the date of the mort- gage deed. We propose to discuss, first, the relation between the mortgagor and the mortgagee, where the former remains in possession of the estate ; and secondly, the rights of both parties under tenancies which have been created before and after the date of the mortgage deed respectively. Fii'stly, then, as to the relation between the mortgagor and the mortgagee. Where the former remains in possession of the mort- gaged estate, without any express provision that he intends to do so, great difficulty has been experienced in defining the precise relation in which both parties stand to each other. But it may be summed up shortly, that a mort- Mortgagor in gagor in possession is one who, having parted with his Possession, estate, remains in possession at the will, and consistently with the right of the grantee, exercising the ordinary rights of property, yet Kable, at the option of the mortgagee, to be treated either as a tenant or as a trespasser («). (a) Fisher on Mortgages, and cases therein cited; and 3rd ed. vol. i. px^. 442, 443, see T/ivuder y. Belcher, 3^eist, WHO MAY DISTEAIN Part I. Chap. IV. Attornment. Separate attornments. A mortgage deed often contains an agreement tliat the mortgagor shall he tenant to the mortgagee at a rent in ease of interest heing in arrear ; and sometimes a mere 2)ou-cr is given to the mortgagee to distrain for interest, in which case no tenancy is created {b). And although the mortgage deed which creates the attornment has not been executed, yet if the circumstances are sufficient to create the presumption that the relation of landlord and tenant was intended to exist, a distress will he upheld (c). But it seems that some notice must be given by the mortgagee to the mortgagor showing an intention to change the relationship from that of mort- gagee and mortgagor to that of landlord and tenant ; and a distress levied by the mortgagee without any such notice, upon the goods of a third party which are ujxjn the mort- gagor's premises, for rent due since the mortgagor's de- fault, cannot be justified (d). On the other hand, the mortgagor cannot determine the tenancy at will, so as to affect liis right to distrain, by transferring his interest to another without notice to the mortgagee (e) . But an attornment clause is not intended to enable the mortgagee to repay himself any of the capital advanced, but only to secure the payment of rent, interest, and premiums (/'). Where there are separate attornments by mortgagors 450 ; Smartle v. Williams^ 1 Salk. 246; Litchf eld \. Ready, 20 L. J. Ex. 51 ; Wilton v. Dunn, 17 Q. B. 299, per Patteson, J. ; Il/chnafi v. Mackin, 4 H. & N. 722, -pev AVatson, B. (5) Doe v. Davies, 7 Exch. 89 ; Anderson v. Midland Rail. Co., 30 L. J. Q. B. 94 ; Jolhj V. Arhuthnot, 28 L. J. Ch. 547 ; Morton v. Woods, L. P. 4 0. B. 293; Doe^. Wilkinson V. Goodier, 10 Q. B. 957 ; Freeman v. Edicards, 2 Exch. 732 ; Pinhor7i V. Souster, 8 Exch. 7G3 ; Turner v. Barnes, 2 B. &S. 435. (p) West V. Fritche, 3 Exch. 216; Dancer v. Hastings, 4 Bing. 34 ; Jolly v. Arhuthnot, sup. ; Morton v. Woods, sup. (d) CloicesY. Huyhes,lj.Ji. 5 Ex. 160; Gibbs v. Cruik- shank, L. P. 8 C. P. 454. (e) Pinhorn v. Souster, 8 Exch. 763. (/') Hampson v. Fellorves, L. P. 6 Eq. 578. IN CASE OF MORTGAGES. 89 (who are partners) in respect of their undivided moieties, Part I. the mortgagee cannot, by means of simultaneous distresses Chap. IV. upon the goods of each of them, take such as belong to them in common. Thus, in the case of Ex parte Parke, Re Potter (g), Potter and Ferridge mortgaged certain free- holds to Parke and others. In the mortgage deed Potter attorned to the mortgagees at a rent of 50/, as to one undivided moiety, Ferridge also attorned at a like rent of 50/. to the mortgagees as to the other midivided moiety. Default being made in payment, the mortgagees issued two separate distress warrants against Potter and Fen'idge, under whicli the bailiff seized some bricks, the property of Potter and Ferridge as partners, there being no other goods on the land; it was held by Bacon, V.-C, that the landlords' {i.e., the mortgagees') riglit of distress was to seize upon chattels that are on the land belonging to the tenant, but in exercising that right they could not seize chattels which belonged to other persons {i.e., the partner- ship property), or in which the tenant had only a partial interest. (1.) Where a lease has been made Jjefore the date of the mortgage deed. By the mortgage the reversion passes to the moi-tgagee, and with it the right to receive the future rents, in addi- tion to the other rights incident to the estate which formerly belonged to the mortgagor ; and the tenant may pay the rent to the mortgagor, provided it be rent due liefore the execution of the mortgage ; but if the tenant pay to the mortgagor a year's rent in advance, and after the payment and before the rent has become due, the mortgagees give him notice to pay it to them, they are justified in distrain- ing, on his refusal to do so {h) . If a lessor, after mort- gaging, is permitted by the mortgagee to continue in (y) L. E. 18 Eq. 381. L. E. 5 C. P. 589 ; Cook v. {h) De Nicholls Y.Saimders, Guerra, L. E. 7 C. P. 132. 90 WHO MAY DISTRAIN Part I. receipt of t]ie rent incident to that reversion, during sucli Chap. IV. permission he is ^^ prcesumptione Juris" authorized, if it should become necessary, to realize the rent by distress, and to distrain for it in the mortgagee's name, as his bailiff {i) . And this also applies where a mortgage by demise has been paid off by the assignee of the equity of redemption, such assignee having an implied authority to distrain in the name of the mortgagee {j). In another case, however, it has been decided that although it may be necessary for the mortgagor to justify the distress as bailiff of the mort- gagee, it is not necessary that the distress should be made in the mortgagee's name (A-). Jutlicature It is provided by the Judicatiu'e Act, 1873, sect. 25, sub- ° ' ' " sect. 5, that " a mortgagor entitled for the time being to the possession or receipt of the rents and profits of any land, as to which no notice of his intention to take posses- sion, or to enter into the receipt of the rents and profits thereof, shall be given by the mortgagee, may sue for such possession, or for the recovery of such rents or profits, or to prevent or recover damages in respect of any trespass or other wrong relative thereto in his own name only, unless the cause of action arises upon a lease or other contract made by him jointly with any other person." Notice by the But the mortgagee, by giving notice of the mortgage to the tenant, is entitled to the rent in arrear at the time of the notice, as well as to what accrues afterwards, and he may distraiu for it after such notice, although he was not in the actual seisin of the premises, nor in the receipt of the rents and profits thereof at the time the rent became due (/). ii) Trent v. Hunt, 9 Exch. 322. 14. {I) Moss V. GaUimore, 1 {j) Snell V. Finch, 13 C. B. Doiigl. 279; 1 Sm. L. Cas. 6th N. S. 651. ed. 561 ; Pope v. Biggs, 9 B. {k) Reece v. Strousberg, 54 & C. 245 ; Raivson v. Eicke, 7 L. T. N. S. 133; Dean of A. & E. 451. See Carter v. Christ Church, Oxfords. Duke Salmon, 43 L. T. N. S. 490, of Buckivc/ham, 33 L. J. 0. P. ;jos/, pp. 295, 296. morto-a IN CASE OF MORTGAGES. 91 Part I. (2.) Wlicre a lease has been made after the date of the mort- Qti^p IV gage deed. ■ In this case it seems that the mortgagee cannot distrain by merely giving the tenant notice of the mortgage and requii-iug him to pay the rent reserved by the mortgagor to himself. Such notice alone is not sufficient; there must be an agreement or attornment by which a new tenancy is created between the mortgagee and the tenant (;«). An agreement, express or implied, as by a pajTnent of rent to tlic mortgagee after notice, and an acceptance of it by him, will sufficiently create a tenancy between them (n). And a tenant of the mortgagor, whose tenancy has com- menced since the mortgage, may, if obliged to attorn to the mortgagee under tlu-eat of eviction, dispute the mort- gagor's title either to the land or the rent (o). After the mortgagee has obtained pajonent of the rent, the tenant, in defending himself against a subsequent action by the mortgagor, is still not allowed to deny the mortgagor's title : he must admit it, and then show that it has been determined, and that he lias been compelled to make the payment to the mortgagee (p). But although the mortgagee may not distrain on the tenant when the lease is made after the mortgage, except by such notice as above, such lease is absolutely void as against the mortgagee, and the tenant imder it is a tres- (?») Partington v. Wood- supra ; and Evaiis v. Elliott, cock, 6 A. & E. 690 ; Brown supra. V. Storey, 1 M. & G. 117; (o) Doe d. Higginhotham Y. Rogers V. Ilump/iregs, 4 A. & Barton, 11 A. & E. 314; Mayor E. 299 ; Waddilove v. Burnett, of Poole v. Whitt, In M. & W. 2 Bing. N. C. 538 ; Doe v. 571 ; Delanetj v. Fox, 2 C. B. Buclcnell, 8 0. & P. 566, over- N. S. 768; Carpenters. Parker, ruling the judgment in Pope 3 C. B. N. S. 237. Y. Biggs, supra ; and. see Evans {p) Alchorne v. Gomme, 2 V. Elliott, 9 A. & E. 342. Bing. 54 ; Doe d. Marriott v. {n) Rogers v. Humphreys, Edwards, 5 B. & Ad. 1065. 92 WHO MAY DISTRAIN Parti. Chap. ly. Mere licence to distrain cannot be transferred. Where lease is contempo- raneous with the mort£?asre. passer whom he may eject without notice ((7), even although ho has treated the mortgagor as tenant by his previous conduct. Thus, where hy a mortgage deed the mortgagor attorned to the mortgagee, and there was a proviso that the reservation of the rent should not prejudice the mort- gagee's right to enter at any time after default made in payment of the money secured or any part thereof; it was held that after default made in payment of the principal, and of one half-year's rent, the mortgagee might eject the mortgagor, though he had treated the mortgagor as tenant by distraining on him for a previous year's rent (r). But in a case where there had not been an actual attornment, but a mere personal licence "to distrain" for arrears of interest, in like manner as for rent, and the mortgagee under such power distrained after the date of the demise for arrears due before such demise, the mort- gagor having continued in possession ; it was held that such distress did not amount to a recognition of the moi*t- gagor as tenant, so as to disable the mortgagee from bringing an ejectment (s). A mere personal licence to distrain cannot be trans- ferred {t) . "Where a lease was neither prior nor subsequent to, but contemporaneous with, the mortgage, it was held that as it was made under a power created by the same instrument, a notice of the mortgagee's to the tenant in possession (q) Keech V. Hall, 1 Dougl. 21 ; Thunder v. Belcher, 3 East, 449. (r) Doe d. Garrod v. Olle}/, 12 Ad. & Ell. 481 ; Doe cl. Snell V. Tom, 4 Q. B. 615 ; Broicn ■^ . Metropolitan Life Assurance Society, 1 Ell. & Ell. 832. (s) Doe d. Wilkinson v. Goodier, 10 Q. B. 957; Pin- horn V. Souster, 8 Exch. 763 ; Freeman v. Edicards, 2 Exch. 732 ; Chapman v. Beecham, 3 A. & E. 723. if) Brorcn v. Metropolitan Companies Life Assurance So- ciety, siqjra. See also Ln re Davis &: Co., Ex parte Ratv- linys, W.N. 1888, p. 236. IN CASE OF BANKRUrTCY. 93 entitled him to routs due at the time of tlie notice, and Part I. gave a right to distrain for them («), Chap, IV. By sect. 42, sub-sect. 1, of the Banki^uptcy Act, 1883 (.r), (b) On bank- " the landlord, or other person to whom any rent is due tenants. from the bankrupt, may at any time, either before or after the commencement of the bankruptcy, distrain upon the goods or eifects of the banki'upt for the rent due to him from the bankrupt, with this limitation, that if such dis- tress for rent bo levied after the commencement of the bankruptcy, it shall be available only for one year's rent accrued due prior to the date of the order of adjudication, but the landlord or other person to whom the rent may be due from the bankrupt may prove under the bankruptcy for the sui'plus due for which the distress may not have been available." And by sub- sect. 2, " for the j)urposes of this section the term ' order of adjudication ' shall be deemed to include an order for the administration of the estate of a debtor whose debts do not exceed 50/., or of a deceased person who dies insolvent." The first clause of this section is to the same effect as sect. 34 of the Bankiaiptcy Act, 1869 (^), and the landlord's right to distrain for rent {ii) Holers V. Humphreys, 4 to the respective rights of se- A. & E. 299. cured and unsecured credi- {x) 46 & 47 Vict. c. 52. tors, as to debts and liabilities (y) 32 & 33 Vict. c. 71. See proveable, and as to the valua- Ex jicirte Morrish, Re Morrish, tion of annuities and future L. Jbi. 22 Ch. D. 410 and 425; and contingent habihties re- Wray Y. Earl of Egremo7it, 4i spectively, are toaj)ply." See B. & Ad. 122. This latter Thomas v. Patent Lionite Co., section has been held inappli- L. E. 17 Ch. D. 250 ; Re Coal cable to sect. 10 of the Judi- Consumers' Co., L. E. 4 Ch. D. cature Act, 1875, which enacts 625 ; Re Therese &,- Co., W. N. "that in the winding-up of 1879, p. 31; Re Bridgwater any company under the Com- Engineering Co., L. E. 12 Ch. panies Acts, 1862 and 1867, D. 181; but see also Z?e aS'/'oc/;- as well as in the administra- ton Iron Furnace Co., L. E,. tion of the assets of any de- 10 Ch. D. 335. It has also ceased person, whose estate is been held that the 10th section insufficient for the payment of the Judicature Act, 1875, of his debts and Habihties, the does not so far assimilate the rules of law in bankruptcy as rules in the winding-up of 94 WHO MAY DISTKAIN Part I. accruing due after the order of adjudication is in no way Chap. IV. limited either by this section (z), or by sect. 34 of the Act of 1869, and therefore the landlord has a perfect right to distrain for such rent as against a trustee in possession of the premises, and this though the rent be payable in ad- vance (a). Nor does he lose his right under this section though the goods be in the , custody of the receiver (b). So where, after a liquidation petition had been filed, and a receiver appointed, who had taken possession of the debtor's property, the debtor's landlord, without asking the leave of the Court, distrained for a year's rent due to him, and the County Coiu't judge restrained the landlord from proceeding with his distress, and ordered him to be committed for a contempt of Comi ; it was held by Bacon, C. J., that the Court could not interfere Avith the statutory right given to the landlord by sect. 34 of the Bankruptcy Act, 1869, and the order for committal was discharged (c). But if the goods be removed, even by the trustee, from the premises, the landlord loses his preferential right, and may not follow them (d). And he will lose the benefit of any distress he may have made before bankruptcy if after dis- tress he allows the goods to remain on the j)remises, and they are in the reputed ownership of the bankrupt at the commencement of the bankruptcy (e). companies to the rules in parte Phimmer, 1 Atk. 103. banki'uptcy as to give a col- (c) Ex parte Till, Re May- lector of the Queen's taxes a hew, L. E. 16 Eq. 97; Ex right to distrain on the goods parte Ea tough, Re Cliff e, 42 of a company in liquidation. L. T. N. S. 95. ^e.Q Re Regent United Service (d) Ex parte Descharmes,.! Stores, 8 Ch. D. 616. Atk. 103; Gcthin v. Wilks, 2 (s) Sect. 42, sub-s. 1. Dowl. Eep. 189; Ex parte l^a) Ex parte Hale, Re Binns, Plumnier, supra; Bradyll v. L. E. 1 Ch. D. 285. See Ex Ball, 1 Bro. C. C. 427 ; Buch- parte Carter, Re Ware, L. E. ley v. Taijlor, 2 T. E. 600; Ex 8 Ch. D. 731, as to the posi- parte Devine, Cooke, 216. tion of the trustee after re- (e) Ex parte Shuttleworth, lease with regard to rent due. Re Dean, 1 D. & C. 223 ; Bald- (b) Ex parte Cochrane, Re win on Bankruptcv, 4th ed. Mead, L. E. 20 Eq. 282 ; Ex p. 227. IN CASE OF BANKEUPTCY. 95 On tho 5th September, 1881, a tenant holding a lease Part I. for twenty-one years filed liIs petition for liquidation. On Chap. IV. the 13th September the landlord distrained for a year's rent due, according to the terms of the lease, upon the 24th March, 1881. Trustees in the debtor's liquidation were appointed on the 13th October, 1881, and on the 25th October the landlord distrained for a further six months' rent, due on the 29tli September. On the 14th November the trustees of the liquidation disclaimed the lease pursuant to leave granted by the Court. It was held that the land- lord, having levied his distress for rent after the commence- ment of the bankruptcy, could only distrain for one year, according to tho 34th section of the Bankruptcy Act, 1869, and that the second distress was therefore invalid (/). The payment due to a gas company for gas supplied, though it is called " rent " in some Acts of Parliament, is not really of the nature of rent, and consequently a gas company does not come within the words " other person to whom any rent is due " in sect. 34 of the Bankruptcy Act, 1869. Those words apply only to a person who, though he is not the landlord of the bankrupt, fills a position analogous to that of a landlord, because he is entitled to receive that which is rent strictly so called (g) . But not so a gas company, whose special Act i^rovided that " all sums of money due to the company for the supply of gas might be levied by distress, and that any justice, on application, might inquire into and ascertain the amount due, and issue his warrant accordingly for levjdng the same "(/?). A landlord's right of distress is only limited as regards (/) Ex parte Morrish-Dijhe, Eq. 204; and Ex jJcirte Birm- In re 3Io7-n'sh, 47 L. T. N. S. ingham and Staffordshire Gas 26. Co., Re Fanshaiv, 11 Eq. 615. {g) Ex parte Harrisoji, In (A) Ex parte Hill, He Ha- re FeaJce, L. E. 13 Q. B. D. herts, L. E. 6 Ch. D. 63, dis- 753. 8ee also Ex parte Birm- tinguished from Ex parte ingham Gas Light and Coke Birmingham Gas Co., supra, Co., In re Adams, L. E. 11 in Ex parte Harrison, supra. 96 WHO MAY DISTRAIN Part I. tlie goods and effects of the Ixmhnipt. Tims, wliere tlie Chap. IV. tenant of a mill mortgaged certain machinery, &c. to the defendant, who subsequently took possession, and the tenant afterwards became bankrupt, owing his landlord rent for the mill; it was held that the landlord had a right to distrain for six years' arrears, as the goods had ceased to he the hanJcrupfs goods, and that the goods of the defendant which were on the premises could also be dis- trained (/). Upon the construction of sects. 42 and 142 of the above Act of 1883, an order obtained in the Chancery Division by a creditor for administration of a deceased debtor's estate, not followed by any proceedings in bankruptcy, is not equivalent to or included in the term " order of adjudi- cation," so as to limit the power of the landlord or other person to whom rent is due from the deceased person's estate to recover by distress one year's rent only accrued due prior to the date of the administration order (/). The words " order for adjudication " mean an order made by the bankruptcy court, and not orders made by the High Court. The rent A distress under an attornment clause in a mortgage reserved must ^^]^ |^g protected imdcr this section, unless either fi-om the be a real one. ^ -'■ ' excessiveness of the rent reserved, or from other circum- {{) BrocJdehmst v. Laice, 7 tified iu paying to the land- Ell. & Bl. 17C. Payment to lord, with notice of the bank- a landlord by a tenant of a ruptcy, a year's rent, no year's rent, under a threat of distress having been made, distress, even after an act of Lee v. Lopes, 15 East, 230. bankruptcy, is unimpeach- Compare Lx ^j«r/e Elliott, 3 able. Stevenson v. Wood, 5 M. & A. 664, where a distress Esp. 200. A stranger who had been made ; and also pays out the distress is en- J/«ror v. C/-oo??ie, 1 Bing. 261 ; titled to be recouped out of andDarntonv.Pi'(/>nan,Veake, the estate in priority to the Ad. Ca. Ill; Baldwin on other creditors. Ex parte Ken- Bankruptcy, 4th ed. p. 226, nard, 21 L. T. N. S. 684. But note (3). a sheriff, under an execution {j) In re Fryman\i Estate, after bankruptcy, is not jus- 38 Ch. Div. 468. IN CASE OF BANKRUPTCY. 97 stances, the Court comes to the conclusion tliat the rent Part I. was a mere sham rent, and that there was no intention to Chap. IV. create the real relationship of landlord and tenant, but that the clause was a mere device for the purpose of giving the moi-tgagee an additional secuiity upon chattels which would otherwise have been distributed amongst his credi- tors. Thus, where a mortgage deed contained a covenant by the mortgagee that he would not require payment of the principal for a period of five years if the interest was punctually paid, and if the mortgagor shoidd not have become bankrupt, or filed a liquidation petition, or parted with possession of his mortgaged premises, or ceased to carry on his business thereon, and the mortgagor attorned tenant from year to year to the mortgagee in respect of tlie mortgaged premises, at a rent wliich was nearly seven tunes the letting value of the premises (the deed not being registered under the Bills of Sale Act), and a few months after the execution the mortgagor filed a liquidation peti- tion, and the mortgagee sought to distrain for a year's rent under the 34th section of the Banki'uptcy Act, 1869 ; it was held that the arrangement was void as against the trustee in liquidation, being a mere device to give the mortgagee the benefit of the S-lth section of that Act in the event of the mortgagor's bankruptcy {k). But where a mortgage was executed by a company to their bankers to secure the balance of an account ciuTent, for the sum of 50,000/., and under the attornment clause the company agreed to become tenants from year to year to the mort- gagees at the annual rent of 5,000/. ; it was held that there was nothing unreasonable in the sum so reserved as a rent (/). And in such a case, in the absence of any pro- vision to the contrary, the balance, after the payment of {k) Ex parte Williams, Re more than ffty times the real Thompson, L. E. 7 Ch. D. value of the property. 138; and see Ex parte Jack- {I) Re Stockton Iron Fur- son, Re Bowes, L. E. 14 Ch, nace Co., L. E. 10 Ch. D. 335. D. 725, where the rent was 98 WHO MAY DISTRAIN Part I. tlie interest tlien due, is applicable in reduction of the Chap. I v. principal debt {in). And the mortgagee can distrain upon the goods of a third person (who has no notice of the mortgage) which may be upon the mortgaged premises at the time of default in payment of rent by the mortgagor (>/). And where a debtor mortgages certain premises, and there is an attornment clause in the deed creating a valid rent, and he subsequently by deed mortgages the same premises (subject to the prior mortgage) with other property to another person, and that deed also contains an attornment clause at a valid rent, each mortgagee may distrain for the amount of interest owing to him, and such distresses are valid as against the trustee in licpiidation (o). Uncertainty Uncertainty in the amount of the rent does not neces- of rent^™*^ sarily render tlie attornment clause void. Thus, where there was a mortgage to a building society, to secure the repayment of 7,000/., in respect of shares held by the mortgagor in the society, and the deed contained a clause by which it was agreed that if the mortgagee should become entitled to enter, and the mortgagor should then be in occupation of the premises, he should during such occupation be tenant thereof from month to month to the mortgagee at a monthly rent " of such a sum as should be equal in amount to the moneys that ought to be paid monthly by the mortgagor from time to time for sub- scriptions, interest, fines, and other paj'ments under the rules of the society, and that such tenancy should com- mence upon the day up to which the said mortgagor should have fully paid up all subscriittions, fines, and other moneys ; " it was held that the attornment clause, and the distresses levied under it, were vahd as against (?n) Ex parte Harrisoii, Be (o) JEx jiarte Punnett, Tie Belts, L. E. 18 Ch. D. 127. Kitchen, L. E. 16 Ch. D. 226 ; («) Kearsley v. Philips, L. Morton v. Woods, L. E. 4 E. 11 Q. B. D. 621. Q. B. 293. IN CASE OF BANKKUPTCV. '99 the trustees in bankruptcy {p) ; Brett, L. J., oLserving Part I. " tliat tlie real question was this ; at the time when the Cha]). IV. contract was made was it made for the purpose of its being acted upon between the parties, whether there should 1)0 a bankruptcy or not ; or were their minds really fixed upon this, that it was to be acted upon onJi/ if there was a bankruptcy ? that is to say, they must have had bankruptcy in their contemplation at the time of making the contract ; they must have contemplated evading, or attempting to evade, the fair distribution of the property in case of a bankruptcy ; that seems to me the true prin- ciple of law which was laid down in the case of Ex parte Williams, lie T/iompson " (q). The relation of landlord and tenant exists although there is a proviso that the mortgagee, at any time after the date fixed for the repayment of the mortgage money, may enter and determine the tenancy without any previous notice (r). A landlord who has elected to take his remedy by proof in the fii'st case will not be allowed to distrain after- wards (s). If the distress is paid out by a third person, he is en- titled to have the amount refunded out of the estate before the other creditors receive any di^^idend (f). A distress for rent in ai'rear is not an " execution or legal process " within the meaning of sect. 42 (u) ; and, therefore, an injunction will not lie to restrain a gas com- pany, empowered by its act of incorporation to recover rent and charges due for gas supplied "by the same means as landlords may recover rent in arrear," from distraining (p) Ex parte Voisey, Re Ch. D. 478. Knight, L. E. 21 Ch. D. 442. (s) Ex parte Grove, 1 Atk. {q) Supra, p. 97. 104. (r) Ex parte Qneeii' s Benefit {t) Ex parte Kennard, 21 Building Society, Re Threlfall, L. T. N. S. 684. L. E. 16 Ch. D. 274. See also («) Bankruptcy Act, 1883. StaveJey v. Grundy, L. E. 22 H 2 100 WHO MAY DISTRAIN Part I. upon the goods of a debtor, notwitlistauding it liad re- Chap. IV. ceived notice of the bankruptcy proceedings (r). Groods rightfidly in the custody of the law, i.e., under a distress, are not considered in the " order or disposition " of the bankrupt within the meaning of the Bankruptcy Act, 1883 (^■). But there is no sufficient change of posses- sion where goods distrained for rent by a landlord are allowed by him to remain in the custody of the bankrupt tenant's wife {y) . BiUsof Sale Sect. 6 of the Bills of Sale Act, 1878(c), provides, that '^ ' ' ■ " Every attornment, instrument, or agreement, not being a mining lease, whereby a power of distress is given, or agreed to be given, by any person to any other person by way of secmity for any present, futm-e, or contingent debt or advance, and whereby any rent is reserved, or made payable, as a mode of providing for the payment of interest on such debt or advance, or otherwise for the pm'pose of such security only, shall be deemed to be a bill of sale, within the meaning of that Act, of any personal chattels which may be seized or taken under such power of distress : provided that nothing in that section shall extend to any mortgage of any estate, or interest in any land, tenement, or hereditament, which the mortgagee, being in possession, shall have demised to the mortgagor, as his tenant, at a fau" and reasonable rent " {a). [v) Ex parte Birmingham (y) Ex jyarte Shuttleivorth, Gas Light Co., Re Fanshaiv, Re Deane, 1 D. & C. 223. supra, p. 95. But see the re- {z) 41 & 42 Vict. c. 31. marks of Baggallay, L. J., on (a) Ex parte Jackson, Re this case in Ex parte Harrison, Bowes, supra, p. 97 ; Ex parte In re Peake, supra, p. 95; Ex IJ'iUiatns, Re 27wmpso}i, supra, parte Cochrane, Re Mead, p. 97 ; In re Stockton Iron supra, p. 94; Ex parte Hill, FurnaceCo.,supra,^.%l ', Mor- Re Roberts, supra, p. 95. touY. Woods, si/pra, i). 98 ; Ex (x) Sect. 44, sub-s. 2 (iii) ; parte T^oiseg, Re Ktiight, supra, Sacker v. Chidley, 13 W. E. p. 99. As to what documents 690 ; Ex piarte Foss, 2 De G. are inchided in the expression & J. 230 ; Taylor y.Eckersley, "bill of sale," see Baldwin L. E. 5 Ch. 1). 740. on Bankruptcy, 4th ed. p. 198. IN CASE OF BANKRUPTCY. 101 It has teen held that an attornment clause in a mort- Part I. gage of land whereby, by reason of the relation of land- Chap. IV. lord and tenant thereby created, a power of distress is given to the mortgagee as security for the payment of interest in arrear, is a bill of sale within the above section, and that the pro^^so applies only to cases in which the mortgagee, haAdng previously taken possession of the mortgaged premises, has demised to the mortgagor, and not to a case where the demise is created by the mortgage deed itself (/>). So, also, an agreement for the letting of a public-house, whereby the tenant agreed not to sell any malt liquors otlier than such as should be purchased of the landlord, containing a proviso tliat if during the tenancy any sums should remain unpaid for the space of twenty-four hours after a demand in writing for payment thereof had been left upon the premises, it should be lawful for the landlord to enter and distrain in respect of the amount due, was held to require registration as a bill of sale (f). A power of distress in an agreement for hire and piu"- chase of railway waggons is not void as against the policy of the bankruptcy laws (<■/). Where a landlord distrained for rent before the bank- Second ruptcy of his tenant, and when the goods were appraised •^stress, left them on the premises for the use of the bankrupt's wife, the bankrupt himself being in prison, and after the banki'uptcy distrained for the same amount of rent, it was held that the second distress was void (c) . And where a landlord put in a distress for arrears of rent due from a tenant who had committed an act of banki-uptey, but in consequence of a notice from the petitioning creditor, (b) Be Willis, Ex parte {c) Pulbrook v. Ashby, 56 Kennedy v. D'Eresly, L. E. 21 L. J. Q. B. 376. a. B. D. 384; 5 L. T. N. S. {d) Leman\. Yorkshire Wag- 749; Hall v. Comfort, 18 Q. yon Co., 29W.E. 466. B. D. 11 ; Ex parte Jackson, (e) Ex parte Bradley,! Dea. 14 Ch. Div. 725, 733. & Cliit. 223. IU») . The stranger, in order to exempt himself, must show that he holds by some paramount title. So where the defendants distrained for arrears of a rent-charge granted by a tenant for sixty-two years, for three lives, and the tenant assigned over to the plaintiffs ; it was held that the assignee of the grantor of the rent-charge was considered to be in the position of a tenant, and that as he could not claim by title paramount his goods were liable to be distrained {ii). The right of distress extends to the goods of a person holding as under-tenant ; for his occupation is considered, with respect to the lessor, as the possession of his lessee (o) . Formerly, at common law, it was necessary that a lease should be completely smTendered before it could be re- newed ; and the under-tenants often refused to surrender their leases. This was remedied by the statute 4 Geo. II. c. 28, s. 6, which provided, that "the renewal of the prin- {k) Saffery v. Elgoocl, 1 Ad. &EU. 191. (/) Ibid. (m) Com. Dig. tit. Distress (B), 2. (n) Safferyy. Elgoocl, sitjjra; Bullen, 81. As to distress in cases of joint tenants, coptir- ceners, co-heirs in gavelkind, and annuitants, see ante, l^p. 45 — 50, and 66. (o) Bull V. GMs, 8 T. E. 327 ; yirnsby v. Woodward, 6 B. &C. 519. PERSONS EXEMPTED FROM DISTRESS. 117 cipal lease should bo valid without a surrender of the Part I. underlease, and that the owners of the new lease should Chap. V. be invested with the same right to the rent of under- tenants, and the same remedy for recovery thereof, as if tlie original leases had been kept on foot" {p). As it would be inconsistent with the dignity of the (f) The Crown that it sliould be treated as a wrongdoer, it is a rule, tliat no man can distrain upon lands in its posses- sion (q). But though the grantee of the rent cannot dis- train upon the possession of the Crown, yet, if he grant over the land, the rent may then be distrained for, as it is not extinguished, but only suspended by the possession of the Cro^vn, and when that possession ceases the remedy revives (>■). This, however, only apj)lies in the case of a rent-service, where the Crown enters without office or record, for, where it is entitled by such office or record, no distress can be made, either on the Crown's possession, or on that of its grantee. In the case of a rent-charge, however, if the Grown is entitled by office found out of the land out of which it issues, although the grantee of the rent cannot distrain on the possession of the Crown, yet if the Crown grant over the land, then the rent and all arrears may be distrained for (.s) . But if the rent- charge as well as the land is found by the office, the remedy of distress will be absolutely gone {f). Where claims of the Crown and of a subject as creditors come into competition, the prerogative right of the Crown to priority is not limited to proceedings by ^ait of extent, but equally attaches in proceedings by distress, although the distress put in by the Crown be subsequent in date to {])) See also 8 & 9 Vict. Chitty's Prerog. 281, 376. c. 106, s. 9. As to cases (r) Bro. Dist. pi. 27; Anon, where the under-tenant is Saville, 125. compelled to pay rent owing (s) Bro. Prerog. pi. 120 ; by his mesne landlord to the Bro. Dist. pi. 27 ; 1 Leon, superior landlord, see posf, 191 ; BuUen, 83. p. 174. (J) Bro. entre, congeable, (y) Bro. Dist. pi. 46, 47 ; pi. 125. 118 PERSONS EXEMPTED FROM DISTRESS. Part I. that of the subject, provided the distress put in hy the Chap. V . subject has not been completely executed by actual sale {u). (g) Ambas- The rights and privileges of ambassadors, and their ser- vants, have been considered to be of such importance, that they sliould be kept sacred and inviolate. By the statute 7 Anne, c. 12, 7 Anne, c. 12, s. 3, it is provided, that "All writs and processes that shall at any time hereafter be sued foi"th, or prosecuted, whereby the person of any ambassador, or other public minister, of any foreign prince or state, authorized and received as such by her Majesty, her heirs or successors, or the domestic or domestic servant of any such ambassador or other public minister, may be arrested or imj)risoned, or his or their goods or chattels may be dis- trained, seized, or attached, shall be deemed and adjudged to be utterly null and void to all intents, constructions, and purposes whatsoever." And by sect. 6, "No person shall be proceeded against as having arrested the servant of an ambassador or public minister by virtue of this Act, imless the name of such servant be first registered," as in the Act mentioned. Where the servant of an ambassador did not reside in his master's house, but rented and lived in another, part of which he let in lodgings ; it was held that his goods in that house, not being necessary for the convenience of the ambassador, were liable to be distrained for poor rates {x) . (h) Distress In cases where a remedy by distress is given by statute limSed bT°^ ^^ persons who were not entitled to it by common law, statute. ag ^Q executors and administrators by the statute 32 Hen. VIII. c. 37 (y), or by the statute 8 Anne, c. 14, the exercise of the remedy must be strictly limited to the remedy mentioned in such statutes, (u) Attorney- General Y. Leo- Parkinson v. Potter^ 16 nanl, 38 Ch. JDiv. 622. Q. B. D. at p. 161. (a-) Novello v. Toof/ood, 1 (y) Ante, p. 57. B. & C. 554, discussed iu GOODS PRIVILEGED FROM DISTRESS. 119 We will now proceed to discuss the several cases in Part I. which goods found upon the demised premises are protected Chap. V. from distress. Such protection militates both ways; for in (2) Gooda some cases a protection is afforded them by common law, P"vileged I . '' from distress, whilst m others, goods previously exempted are made liable to distress by particular statutes. The divisions on this subject, laid down in the leading case of Siinj)so)i v. Simpson v. Ilartopj) (2), are as follows : — '^'^ °^^' I. Things absolutely privileged at common law, including — (1) Things annexed to the freehold. (2) Things delivered to a person exercising a public trade, to be carried, 'svrought, worked up, or managed in the way of his trade or employ. (3) Cocks and sheaves of com, and other things wliich cannot be restored in the same plight. (4) Things in actual use. (5) Animals /e;'« natures. (6) Things in the custody of the law {a) . (7) "Wearing apparel, bedding, and tools of trade, to value of 5/. II. Things conditionally privileged, including — (1) Beasts of the plough and instruments of husbandry. (2) The instruments of a man's trade or profession. These divisions we shall now consider in the above order, and then proceed to examine the recent protec- tion which has been given to the goods of a lodger, under the provisions of the statute 34 & 35 Yict. c. 79 (the Lodgers' Groods Protection Act, 1871) ; and the protection afforded to railway rolling stock, and to gas meters by their respective statutes ; as also to the wearing apparel, bedding, and tools of a man's trade to the value of 61. by the Law of Distress Amendment Act, 1888. (z) 1 Sm. L. Cas. 8th ed. Simpson v. Hartopp, supra, p. 456. but will be found in the notes (a) The above numbers (5) therein. 1 Sm. L. Cas. 8th and (6), are not deduced from ed. pp. 456 et seq. 120 GOODS PEIVILEGED FKOM DISTRESS. Part I. Chap. V. I. Things absolutely privileged at common law. (1) Things annexed to the freehold. Fixtures forming part of the thing demised. Whatever is annexed to the fi-eehold, such as buildings, fixtiu-es, furnaces, windows, doors, and the like, constitute for the time being part of the freehold, and are absolutely exempt from distress (h) ; and the reason for this seems to be that they are not personal chattels, but form part of the thing demised ; also, that they cannot be taken away without doing damage to the freehold, and the things themselves would be injui-ed by their severance, and could not be restored in as good condition as when taken (c) . This exception extends not only to all such things belonging to the heir, which the tenant will not be per- mitted to remove from off the premises, but also to fixtures, which, as between landlord and tenant, icoiild be removable. In this latter respect, there is a distinction between distresses and executions ; for under executions, fixtures, which the party against whom the execution issues could have removed as against his own immediate landlord, may be seized (r/). And first, they cannot be distrained because they form part of the thing demised. Thus, in the case of NihJet v. Smith (e), it was held that a lime-kiln affixed to the free- hold could not be distrained, it being considered not a mere personal chattel, but part of the freehold. So also keys (/), gas fittings (g), windows, and charters (concern- ing the realty), being by construction of law parcel of the (5) Simjison v. Hartopp^ supra. (c) Gilbert on Distress, 4th ed. p. 39 ; Bullen, 92. At common law, a distress being a mere pledge, nothing could be distrained which could not be returned in the same plight. For this, see post^ p. 137. {d) Poole's case, 3 B. & C. 368 ; Place v. Far/c/, 4 M. & E. 277 ; Bates v. Duke of Beau- fort, 8 Jurist, N. S. 270, L. J.; Sm. L. & T. 3rd ed. p. 213. Unless the tenant has by his lease or agreement renounced his right to disannex or re- move them during the term. Dumergue v. Rumsey, 2 H. & C. 777. (e) 4 T. E. 504. (/) llCo.Eep. 50; 6Exch. 311; Gauntlett v. King, 3 C. B. N. S. 59. (y) Gas Light and Coke Co. V. Hardy, 17 Q. B. D. G19 ; Gas Light Sf Coke Co. v. Herbert Smith Sf Co.^ 3 Times Law Eep. 15. GOODS PKIVILEGED FKOM DISTRESS. 121 freehold, are not liable to be distrained (A) ; and fixtures, Part I. such as a grate, a kitchen range, or a copper, affixed to ^hap. V. the dwelling-house, are not distrainable, though they may be removed by the tenant during the term(/). A mere temporary removal of fixtm^es for the pm-poses of necessity is not sufficient to destroy this privilege {k) . Thus, a smith's anvil on which he works is not distrainable, for it is accounted part of the forge, though it be not actually fixed by nails to the shop (A). So a mill-stone is not distrainable, though it be removed out of its proper place in order to be picked ; because such removal is of necessity, and the stone still continues to be part of the mill (/). But mules used for spinning cotton, which were fixed by means of screws, some into the wooden floors of a cotton mill, and some by being sunk into the stone flooring and secured by molten lead, were held to be distrainable for rent ; and the reason of this seems to have been that they were fixed to the freehold, not for the improvement of the land, but only for the pm^pose of being more conveniently used as machinery. In the case which decided this, Parke, B., says, "they {i.e. the machinery) are not of a perishable nature, and would not suffer by a careful removal. If it were necessary to take some to pieces in order to remove them, that circumstance woidd make no difference ; for that might occur in other chattels, as for instance, post-beds ; they could not be carried to the pound without being first taken to pieces, and the distrainee would have no reason to complain that they were restored to him in the disjointed state at the pound, where he must attend to rescue them. It is a question of fact, depending on the circumstances of each case, and (/i) Gilbert on Distress, 34, (k) Gorton v. Falkfier, 4 48 ; Hellawell v. Eastwood, 6 T. E. 567. Exch. 295. (J,) Bro. Abr. tit. Distress, {i) Darby v. Harris, 1 Q. B. pi. 23 ; Amos & F. 2nd ed. 895. 317; Woodfall's L. & T. 10th ed. 396. 122 GOODS PEIVILEGED FEOM DISTEESS. Part I. prmcijJally upon two considerations, first, tlie mode of Gnap, v. annexation to the soil or fabric of tlie house, and the extent to which it is united to them, whether it can easily be removed ' integroe, salvse, et commodse ' or not, without injury to itself or the fabric of the building ; secondly, on the object and purpose of the annexation, whether it was for the 2^ennancnt and substantial improvement of the duelling, or merely for a temporary purjwse, or the more complete enjoyment and use of it as a cl/attel" {»}). Machinery annexed to the soil for the piu'pose of render- ing minerals merchantable, if such machinery was capable of being removed therefrom by disturbing the soil without destroying the land, cannot be deemed to be so attached to the land as to become part of it, and belong to the owner of the land, but are deemed to be trade fixtures (»). What degree It will be seen, therefore, from this case, that the ques- of aunexation ^- f ^| -^^ ^^ distrain on articles of this nature 18 necessary. o depends upon the degree of annexation which is necessary in order to bring them within the category of a fixture. Thus it has been held that a granary, resting by its mere weight upon stacldles built into the land, was not a fixture within the meaning of the deed by which all the fixtures appertaining to a farm were conveyed (o). On the other hand, rails and sleepers, forming a railway used for the purpose of working a colliery, which are laid upon a level (m) Hellawell v. Eastwood, tory was distrainable ; and in 6 Esch. 295 ; Watcrfcdl v. Trappes v. Harter, 2 Cr. & M. Fenistone, 6 E. & B. 876, dis- 177, the screwing of a stock- tinguished in Walnisley v. ing frame to the floor, to keep mine, 7 C. B. N.S.I 15; and it steady, did not make it a Longhottum v. Berry, L. R. 5 fixture. And see the Lincoln- Q. B. 123, approved and fol- shire Finance Co. v. Farrant, lowed in Sheffield and South 2 Times Law Eep. 248. Yorkshire Permanent Buildiny (n) Ward v. Countess of Society v. Harrison, L. E. 15 Dudletj, 57 L. T. N. S. 20, Q. B. D. 358. In Duck v. following Wake v. Hall, L. E. Braddyll, 13 Price, 455, it was 8 Aj^p. Cas. 195. doubted whether machinery (o) Wiltshear v. Cottrell, 1 bolted to the floor of a fac- E. & B. 674. GOODS PRIVILEGED FROM DISTRESS. 123 surface, the rails being nailed to the sleepers, and the Part I. sleepers kept dry and in position by quantities of dry and Chap. V. hard material called ballast, placed under and about them, which prevents the sleepers being removed without its previous displacement, and without holes being formed by its falling in, are fixtures, and therefore not distrainable for rent ; even though they are in practice shifted about from time to time to meet the requirements of the colliery (p). If a landlord under a distress for rent sever fixtures from the freehold, and dispose of them, he is liable in trover ; and the plaintiff does not thereby waive his right of maintaining that the distress is illegal because fixtures cannot be distrained {q). No action can be maintained for a mere constructive seizure of fixtures as a distress : as where a landlord distrains upon goods, and in his notice of distress includes fixtures, expressing an intention to sell them, but no actual seizm-e or severance of the latter takes place (r). Under this exception, at common law, growing crops Growing and other fixtures, were exempted from distress (s) ; and ^^°P^' in this respect a distress also differed from an execution. But now, by the statute 11 Greo. II. c. 19, s. 8 (t), the ii Geo. 2, landlord may distrain corn, grass, or other product, grow- °' ^^' ^' ^' ing on any part of the land demised. Such things previously not being chattels personal were not distrainable at common law, but now they are like any (;j) Turner v. Cameron, Q,. B. 961. In sucli action L. E. 5 Q. B. 306. See also their vakie as chattels only, Walmsley v. Milne, 7 C. B. not as fixtures, can be re- N. S. 115; Lane v. Dixon, 3 covered. Clarke v. Holford, C. B. 776 ; Wood V. Heicetl, 2 C. & K. 540. 8 Q. B. 913 ; Waterfall v. (r) Beck v. Denhigh, 29 Pe7iistone, 6 E. & B. 876 ; L. J. C. P. 273. Holland V. Hodgson, L. E. 7 («) 1 Eoll. Abr. 666. C. P. 328, 337 ■ Sm. L. & T. {t) As to imiwunding the 3rd ed. 218. distress under this statute, {q) Ballon v. Whittem, 3 see ^;os^, pp. 241, 242. 124 GOODS PKIVILEGED FROM DISTRESS. Tenant must prove actual Part I. other goods and chattels {u) ; but they cannot be sold until Chap. Y. they are ripe (x) . To entitle a tenant to recover, however, actual damage must be proved ; and therefore, where a defendant seized the plaintiff's growing corn as a distress for rent, and sold it on the j)remises whilst in a growing state, and the pur- chaser ha\-ing cut and carried it away, the siu-plus pro- ceeds, after paying the rent, were paid over to the plaintiff, and the jury found that the plaintiff had sustained no damage by the transaction ; it was held, that the plaintiff was not entitled to recover even nominal damages (y) . And where the only things on the land are growing corn and things which are privileged sub modo {z), the landlord is not obliged to resort to the grooving corn before taking the articles which are conditionally j)i"ivileged [a) . It has Exceptions to been held that this statute does not include trees, shrubs, and plants growing in a niu'sery ground, the words " other product " only applying to such j)roducts of the land as are subject to the process of becoming ripe, and of being cut, gathered, and laid up, when ripe (b). The power of distress given by this statute is extended only to the case of landlords distraining on the land demised ; so that growing crops cannot be taken imder a jiower in an annuity deed " to enter and distrain, and the distress then and there to detain, manage, sell and dispose of in the same manner and in all respects as distresses for («) Glover V. Culcs, 1 Bing. 6. [x) Proudlove v. Tiremloic, 1 C. & M. 326; Oicen v. Leyh, 3 B. & Aid. 470. (y) Roc/ers v. Parker, 18 C. B. 112 (distinguishing Oicen V. Legh, supra, on the ground that it was there held that the sale was void, not the distress ; and Proudlove v. Ticemloiv, sujjra, on the ground that there the distress was originally lawfid, but the sale was unlawful and irregidar), approved of in Lucas v. Tarleton, 3 H. & N. 116. (;:) As to which, see posi^ p. 146. (rt) Piggott V. Berths, 1 M. & W. 441. {h) Clark v. Gaskarth, 8 Taunt. 431 ; Clark v. Calvert, 8 Taunt. 742. GOODS PRIVILEGED FROM DISTRESS. 126 rent resen'ed upon leases for years miglit be managed and Part I. disposed of, and as if the said annuity or yearly sum Chap. V. thereby granted was a rent reserved upon a lease for years ; " but tlic powers given by those words are limited to those given to landlords by statute 'J Will. & Mary, c. o (c). Tilings delivered to a person, exercising a public trade, (2) Goods to be can-ied, ^vTought, worked up, or managed in the way pei^^in Oie of his trade or oni])loy are ab.solutely exempt from distress, *ay of his . trade, although tliere are no other goods on the premises {//). Some discussion has taken place as to the meaning of Meaning of " public trade." Thus, in the case of Gibson v. Iremn (<"), ir^g >'*^ which held that materials in the house of a manufacturer for the piu'pose of his trade are not distrainable by the landlord for rent, a doul.tt anus expressed wlietlier it was necessary for the exemption of goods held for tlio piu'poses of trade that the trade bo pubHv, and, if so, what consti- tutes a "public trade" — Patteson, J., saying, "I do not know what is meant by the phrase 'public trade.' It is said in Simpson v. llartopp {/), tliat materials sent to a weaver, or cloth to a tailor, to be made up, are p^i^-ileged for the sake of trade and commerce ; but the trade of a tailor is not public any more than that of a silk weaver. Altliough, therefore, the plaintiff employed the weaver as his workman for wages, it was in his calling of a silk weaver, and as the plaintiff's workman on that occa- sion. The goods were delivered to him to be ' worked up in the way of liis trade,' according to the express words of Simpson v. Hartopp." But the difficulty has always been in ascertaining whether the goods in each jiarticular case (c) Seejoo*/, p. 137; Miller (d) Simpson v. Harfopp, V. Green, 2 Cromp. & Jer. Willes, 512 ; 1 Sm. L. C. 8th 142. See also Aoffs v. Curtis, ed. 458 : Bullen, 95 ; Sm. L. 1 L. J. Ex. 130. As to grow- & T. 3rd ed. 218. ing corn sold under an exe- (e) 3 Q. B. 39 ; and see cution, see 14 & 15 Yict. c. 25, Wood v. Clarke, 1 Cromp. & s. 2, post, p. 143. J. 484 ; andj^os/", p. 128. (/) Supra. convemence. 126 GOODS PRIVILEGED FROM DISTRESS. Part I. were so circiimstancecl as to fall witliin tlie phrase " public Obap. V. trade." The following examples are clearly within the riile : — cloth hailed to a tailor to make a garment (•). Cattle are said to be privileged as well on their way to Cattle on as at a public fair or market. Thus it was held in one f^ ^^^ ^^ case that cattle w^hich are being driven to a market or fair, and are put into pastm^e on the way for one night, are privileged from distress («). But horses and carriages (o) JVood V. Clarke, 1 Launcestoii' s case, Cro. Eliz. Cromp. & J. 484. 75 ; Leadenhall Market, 2 {j}) Rede V. Burley, Cro. Lord Eajm. 1589; Rede v. Eliz. 596. Burley, supra ; Austin v. {q) 1 M. & W. 046, 647; Whittred, WiUes, 623, n. (a), Bullen, 99. 628. (r) Co. Litt. 47 a ; Eoll. (s) Tate v. Gleed, 2 Wms. Abr. 668; 1 M. & W. 647; Saund. 290, n. (/); 1 M. & 128 GOODS PRIVILEGED FEOM DISTRESS. Part I. standing at livery are liable to be distrained by the land- Chap. Y. lord of the premises. The principle of the cases seems to be, that if articles are sent to remain at a place, they are distrainable. If sent for a particular purpose, and the remaining at the place is an incident necessary for the completion of such purpose, they are not (/). Muspratt v. In the case of Musjjratt v. Gregory (n), the principles laid Gregory. dowTi by the Courts in deciding cases of this nature were very fully discussed, and the notes in Simpson v. Hartopp, relating to exemptions in cases of "public trade," com- mented on. In the former case the manufactm-er and seller of salt granted a rent and charged it upon his salt works and premises at which he sold salt publicly to all persons who came for it, and there was a cut or canal on the premises, communicating with a public navigation, in which boats coming for salt were accustomed to lie. The plaintiff, an alkali manufacturer, sent a boat to be laden ■uith salt, which he requii-ed for the purposes of manu- facturing the alkali, and the boat lying in the canal out of the plaintiff's possession was distrained for the arrears of the rent-charge ; it was held that the boat could be dis- trained, and was not exempted by privilege. Alderson, B., in that case, remarks: "The leading case on this subject is that of Simpson v. Hartopp, in which Lord "Willes, C. J., in delivering the judgment of the Court, goes very fuUy into the law on this point. He lays it down that there are five sorts of things which at common law were not distrainable. Now of the exemptions enimierated by Lord "WiUes it is plain that only the second (things delivered to a person exercising a public trade to be carried, wrought, W. 647; BuUen, 100; and see geU, Lewis v. Gingell, 4 C. B. remarks of Alderson, B., ou 545; Woodf. L. & T. 10th ed. Foivkes V. Joyce, 3 Lev. 260. 402. (0 Francis v. Wyatt, 3 («) 1 M. & W. 633; 3 M. Burr. 1498 ; Parsons v. Gin- & W. 678. GOODS PRIVILEGED FROM DISTRESS. 129 or managed in the way of his trade or employ) can be at Part I. all applicable to this case .... the boat is clearly not Chap. Y. within the description of goods delivered to a tradesman Things "to ' to be carried or wrought ' in the way of his trade or ^® carned^or employ ; for there is nothing to be done to it ; it is not brought to be repaired or altered in any way. Then is it Things de- delivered to be '■managed'' in the way of the trade or employ "managed." of the person to whom it is so dehvered ? In Simjyson v. Hartopp the word ' managed ' appears to be used as synony- mous with ' manufactm^ed ; ' but that is too limited a sense of the exj)ression ; for the Com'ts have held that goods sent to a factor by a merchant are privileged from distress under this head. I think, therefore, that it extends both to the working up of goods from their unwrought state into a new form, as a manufacturer, and also to the dealing of the goods as articles of trade in their original or their wrought state as articles of commerce, as a factor." And BoUand, B., also remarks :' " It has been contended at the bar that it can be put upon the benefit to trade alone ; I cannot, however, find any authority to support that position to the extent that is in this case contended for. The reported cases that come nearest to the present are those of the yarn carried to be weighed at a j)rivate beam, if in the way of trade (or), or of the horse that had carried corn to a mill to be ground, and dming the grinding of the corn was tied to the mill door. In these cases the goods and the horse taken were held to be privileged from distress for rent ; but the Coui't, according to the reports, appears to have mainly proceeded upon the ground of the goods being under the personal care of their owner at the time of the taking. The boat in the present case had no such protection. It was left by the owner, and the privi- lege contended for is put as attaching to the boat upon the benefit to trade only. As, therefore, it does not appear to me that the boat comes within either of the five rules of {x) Rede V. Burley, Cro, Ehz. 596, O. K 130 GOODS PRIVILEGED FROM DISTRESS. Part I. exemption laid down in Co. Litt. 47 a, and pointed out by Oliap. V. tlie Coiu't in Simpson v. Jladopp, and as the o^Tiers had, by leaving the boat, taken away that protection which in Rede v. Bnrloy (i/) was thi^own around the goods, and was the ground upon which the Court held them privileged from distress, I am of opinion that the boat was legally distrained." This case was aflfirmed in the Coiu't of Exchequer Chamber, where Lord Denman, C. J., says : — " Many other cases may be suggested in which such an exemption may be thought conducive to the public good, and to the interests of trade. If a lodger leaves his furniture in a public lodging-house (z), or if a farmer having brought malt to a brewer leave his cart in the yard, intending to bring back grains or beer when ready to be loaded, it might equally be contended that such things are exempt from distress. But we find no authority for holding that they are so. In the notes to 2 Saunders' Reports, 289 (b), Serjeant Williams says, 'It seems that cattle belonging to a drover, being put into ground vdth. the consent of the occupiers to graze onh' one night on their way to a fair or market, woidd not at this day be held liable to the landlord's distress for rent'; though the contra had been ruled in Fou-kes v. Joyce {a). With respect to this case, the cattle may reasonably be considered as having con- tinued in the possession of the drover ; but, supposing the cattle to be privileged from distress on the sole ground of affording encouragement and protection to persons fre- quenting fairs and markets, we have no authority to ex- tend that privilege in derogation of a landlord's rent to mere customers resorting to the shop, warehouse, or manu- factory of individuals. Being therefore unable to find any acknowledged class of exemption under which the jDresent case can be ranged, or to which it can by fau" analogy be {y) Supra. Act, 1871, jtjos/, p. 156. [z) See as to this, the (a) 3 Lev. 260. Lodgers' Goods Protection GOODS PRIVILEGED FROM DLSTRESS. 131 compared, we think that the privilege contended for ought Part I. not to be allowed, and that the judgment of the Court of Chap. ^ . Exchequer ought to he affirmed." The authorities on this subject have been reviewed in the recent case of ClnrJxe v. The Milhcall Bock Co. (b), where it was laid down that goods belonging to a third party, which are on the premises of a person exercising a public trade for the pui'pose of being dealt with in the way of such trade, are not exempt fi'om distress for rent unless they have been seut or delivered to the trader. In that case a shij)builder contracted to build a ship upon premises which he held as tenant to the defendants ; the ship was to be paid for by instalments at certain stages of the work. After the ship had been partly paid for it was seized by the defendants as a distress for rent due fi'om the builder. The person for whom the ship was being built paid the rent under protest, and sued to recover the amoimt. It was held (affirming the judgment of Pollock, B.) that, assuming the property in the ship to have passed to the plaintiff under the contract, still the ship, not having been sent or delivered to the builder, was liable to distress, and the plaintiff was not entitled to recover ; Herschell, L. C, remarking, " The sole question to be decided in this case is, whether a ship which was being built for the plaintiff in a diy dock, wliich was rented from the defendants by a person of the name of Grilbert, was or was not exempt from distress for rent due from Grilbert, the shipbuilder, to the defendants ? . . . . Xow on looking at the terms of the rule (laid down in Simpson v. Hartopp)^ it appears to be as much a part of it that the property should be delivered to a person carrying on a trade, as it is that the property should be on the premises for the purpose of being carried, wrought, worked up or managed, in the way of the trade. If the rule is to be limited in the one direction, it follows that it must also be limited to cases where there is in some ih) L. E. 17 Q. B. D. 494. k2 132 GOODS PRIVILEGED FROM DISTRESS. Part I. sense deliveiy of the property. It is essential that one Chap. V. person liaving the right to possession should have entrusted the property to another person for trade purjioses. I can- not reject the term ' delivered ' in interpreting the rule." Rates of toll "Where a canal company were empowered by statute to of'^o-oo^s?^^ impose rates of toll for carriage of goods on the canal, and to fix the places of paj-ment, and, in case of non-payment, to seize the goods in respect of which such rates ought to have been paid, or any part thereof, and the boat laden therewith, and detain the same until payment of such rates, and also all arrears of the said rates due from the owner of such boat ; and if such goods were not redeemed within seven days to sell the same, as in cases of distress for rent ; it was held, that this clause did not empower the company to sell the boats, or to distrain goods when no longer upon the canal (c). And again, in another case where a canal company were authorized by statute in the same way to demand tolls, and detain and distrain the same in like manner, but they were not expressly authorized to levy any toll upon the carriages ; it was held, that trams could not be distrained for arrears of toll due from the owners for goods carried in them, if they were not canying the goods of such ©"^mers at the time of the distress (c/). A dock company by their act of incorporation was empowered to receive for all goods deposited on their premises rates not exceeding those usually paid in the Port of London for wharfage of such goods, and in case default was made in payment of the rates the collectors of the com- pany were to retain and sell all or any part of such goods, and out of the moneys thence arising to retain and pay the rates payable in respect of such goods, returning the over- plus to the j)arty entitled ; and in case such goods should (c) Fraser \. Swansea Canal Ry. Co. v. The North Central Co., 1 Ad. &EU. 354. Wagon Co., L. E., 13 App. (f/) Jenkins v. Cooke, 1 Ad. Cas. 554. & Ell. 372. See M. S. ^- L. GOODS TRIVILEGED FROM DISTRESS. 133 he removed before the rates were paid it was lawful for Part I. the company to distrain or sell any goods of the o^^^ler in Chap. V. manner before mentioned. Certain rates payable in respect of goods belonging to A., which had j)reviously been removed from the premises of the company, being unpaid, the company claimed to distrain other goods of A. then on the premises until payment of the rates due in respect of both those sets of goods. A. had applied to have the goods then on the premises delivered up to him, and was informed by the company that no more goods would be delivered to his order until his debt was paid or reduced. It was held that the statute enabled the company to distrain and sell any goods in theii" possession for the recovery of rates payable in respect of other goods of the same owner (e) . A private Act of Parliament imposed a duty of 2s. per chakbon upon all coal " imported and landed at the town of H., or otherwise brought or delivered within the limits of the town." The Act gave a remedy against the ship- owaier by distraining the ship and tackle as well as the coals in default of payment. At the time that the Act was passed no coals were brought into H. except by sea. It was held that coals brought into the town by railway were liable to the duty, and not only " sea-borne " coals, and that the railway compan}', as the persons who brought the coals into the to^Ti, were primarily liable to pay the duty (/). Brewer's casks, deposited in a public-house, full of beer, and left there until the beer is consumed, are liable to be distrained for rent in arrear in respect of the house. If a cooper had had the casks in his possession for the purpose of repamng them in the way of his trade, they would have been exempted from distress (g). It remains for us to consider a class of cases in which Factors and goods sent to persons for the pm*poses of sale are pri\'ileged ^'^^^ ^ ^ (e) Green v. St. Katherines N. S. 533. Dock Co., 19 L. J. Q. B. 53. {g) Joule v. Jackson, 7 M. (/) G. E. R. Co. V. Ear- & W. 450. wick {Mayor, &,-c.), 41 L. T. 134 GOODS PRIVILEGED FKOM DISTRESS. Part I. Chap. V. Privilege for the benefit of trade and public con- Teuience. Auctioneers. from distress for rent clue from the factor or auctioneer to his laucllord ; and they are privileged on the same grounds as those which we have mentioned above, namely, that the goods are protected for the benefit of trade, and for the convenience of the public at large. Thus, a carriage sent to a coachmaker and commission agent for the sale of crrriages, for the j)m'pose of being sold by him, is not liable to be distrained for the rent of the premises upon which it is so exposed for sale (A). So, also, goods of a principal in the hands of a factor for sale are privileged from distress for rent clue from such factor to his land- lord (?). And the same privilege extends where the factor has no warehouse of his own, but deposits the goods in the warehouse of another person (/r). And also, where goods are landed at a wharf and consigned to a broker as agent of the consignor for sale, and placed by the broker in the wharfinger's wareliouse over the wharf for safe custody until an opportunity for selling them should occui', they are not distrainable for rent due in respect of the wharf and warehouse, as they were brought to the wharf in course of trade (/). These cases have been extended to auctioneers. And so where goods were deposited for sale by auction on the premises of an auctioneer, it was held that they were not liable to be distrained for rent in arrear in respect of those premises ; nor would a misrepresentation as to the ownership, made by the auctioneer in advertising the sale, although it might vitiate the sale, as between buyer and seller, destroy the exemj^tion from distress. Accordingly, where a manufactm-er sent goods to a public auction-room to be sold by an auctioneer, who had hired tlie rooms for a short period, and who advertised the intended sale of (/;) Findon v. McLaren, 6 Q. B. 891. (?) Gihmtn v. Elton. 3 B. & B. 75. (A-) Mathias v. Jfesnard, 2 0. & P. 353. (l) Thompson v. Mashiter, 1 Bing. 283. GOODS PRIVILEGED FROM DISTRESS. 135 those and other goods received in the same way as Part I. '' under an assignment for the benefit of creditors," the ^hap. V. goods having been distrained for rent due for the auction- room from the party of whom it was hired, it was hold that they were pri\ileged from distress. Lord Lyndliurst, C. B., in that case, says, "What is a factor ? Definition of A factor is a person who receives the goods of another for the purpose of selling those goods on accoimt of the o^^^ler. What is an auctioneer ? An auctioneer receives Definition of the goods of other persons for the purpose of sale on account of the owners of those goods." He then goes on l(j say (in referring to cases where goods are sent to fairs and markets), " It is highly beneficial to the manufac- tm-ers of goods, to handicraftsmen, and to many others who are engaged in disposing of them — where will they be likely to dispose of them ? Why, at those places to which pm^hasers will from time to time resort ; they mil resort to a fair or market, and therefore the privilege and the exemption from distress at that place is of great import- ance to the person who is the proprietor, or the original manufactm-er of the goods" {m). And this rule applies, although the auctioneer has obtained possession of the room in which the goods were sold by an act of tres- pass {»). The fact of such room never having been used as an auction-room before, and only being hii-ed for the occasion, is immaterial (o). And the goods will be privi- leged dming the time they are on the premises of the auctioneer for the pm-poses of sale, even if in an open yard attached to his premises {p). On the same principle goods deposited in a granary or warehouse for hii*e, to be safely kept for the pm^poses of trade, are privileged fi'om distress {q) . But where the auctioneer is not the occupier (m) Adams Y. Grane, 1 C. & (;j) Williams v. Holmes, 8 M. 380. Exch. 861. (n) Brown v. Arundel, 10 {q) Farrant v. Eobson, 3 L. C. B. 54. J- G. P. 1^6 ; Miles v. Furber, (o) BroiouY. Arundel, supra. L. E. 8 Q. B. 77, distinguish- 136 GOODS PRIVILEGED FROM DISTRESS. Part I. Chap. V. Pawnbrokers. Goods at an inn. of the premises (as where he advertised a sale at a private house), the goods will not be privileged from distress for rent due by the tenant of that house to his landlord (r) . In another case, an auctioneer sold certain goods for the owner on premises occupied by the owner and another person, and in respect of wliich the latter owed the land- lord rent. By the conditions of sale, each lot was to be taken to be delivered at the fall of the hammer, after Avhich time it was to remain at the exclusive risk of the purchaser. After the sale, and before the goods were removed, the landlord threatened to distrain on the goods, whereupon the auctioneer paid the rent, and deducted it from the amount which the goods had realised, and paid over the balance to the owner. It was held that the auctioneer was not justified in paying the rent, as on the sale of each lot the property passed to the purchaser, who would have had to bear the loss if the landlord had distrained (s) . Goods in the j)ossession of a j^awnbroker as a secuiity for money advanced are also privileged ; and the pawn- broker is entitled to recover their full value from the land- lord, and not merely the amount which he has advanced u2)on them (t). The cattle and goods of guests at an inn are j)ri\ileged fi'om distress ; for they are there necessarily in the way of trade, and an inn being a place ^^publici juris,^^ all men ing the case of Parsons v. Gi7igell, supra, because there it appeared that horses and carriages were only placed there for a casual purpose, and might be removed at any time. (r) Lyons v. Elliott, L. E. 1 Q. B. D. 210, which is dis- tinguished from Thompson v. Mashiter, supra, on the ground that the decision there was, that where goods are depo- sited by a factor in a ware- house, it is not necessary to look to the kind of occupation of the warehouse had b}' the factor ; as it makes no diifer- ence whether it was in his regular occui^ation, or only hired for the purpose of the deposit. (s) Sweeting v. Turner^ L. E. 7 Q. B. 310. {t) Sivire v. Leach, 18 C. B. N. 8. 479. GOODS PRIVILEGED FROM DISTRESS. 137 have a riglit to use it without molestation (ii). But they Part I. must ho actually witliiu the premises of the inn itself, and Chap. V. not in a place to which the innkeeper has removed them for his own convenience. So where an innkeeper placed a race-horse in a stahle half a mile away fi'om the inn, it was held that the privilege could not extend to this stahle ; and that consequently the race-horse was distrainable by the landlord of the stahle (.r). This privilege only extends to temporary guests ; for a person who hires an unfm'nished room at an inn by such hiring becomes an under-tenant ; and any fm*nitm'e that he may have brought iuto such room must be liable to the landlord's distress (y). Such an exemption is not lost by length of time, so long as the things remain fau-ly under the same circumstances {z). Things of a perishable natm*o are also pri^■ileged from (3) Cocks and distress; and things which are liable to be easily lost, or ^orn and which cannot be identified. The reason for this exemption '^^^^^ things . Ill which cannot was that a distress being at common law merely a pledge, be restored things were held not to be distrainable which could not be ^'Jj^hl;^™^ restored in the same plight as they were in at the time of taking them (a). Thus, at common law, fruit, milk, and other things of a like perishable nature, were exempted under this rule (b) ; and money, unless it were in a bag, so that the same identical i)ieces might be known (r) . Nor could the flesh of animals lately slaughtered be chstrained, as it must necessarily be damaged by being removed {d). Neither could grain, or flour taken out of a sack, nor (^^) Bac. Abr. Inns and Abr. Distress, (B) ; Bullen, 98. Innkeepers (B) ; Bullen, 96 ; [a) Co. Litt. 47 a ; Gilbert Robinson v. Walter, 3 Bulstr. on Distress, 34 ; 3 Black. 269. Com. 7. {x) Crosier v. Tomkinson, 2 (b) 3 Black. Com. 9; Bullen, Lord Ken. 439; Bullen, 98; 91. Sm. L. & T. 3rd ed. 221. (c) 1 Eoll. Abr. 667; 2 Bac. (y) Woodf. L. & T. 10th Abr. 109. ed. 403. {cl) Morley v. Pincomhe, 2 (z) 7 Eoll. Abr. 668; 2 Bac. Exch. 101. 138 GOODS PEIVILEGED FROM DISTRESS. Part I. liay from a barn ; for in these cases the exact quantity Chap. V. taken and the identity could not be ascertained {e). Nor Com. could corn in the sheaf be taken, because the grain must be shed and scattered by removal ; unless, indeed, it were found in a cart, in which case it could be removed alto- gether without loss or injmy (/). With regard to corn (j/), 2 Will. & provision has been made by the statute 2 Will. & Mary, c. 5 s. 3.' " ' '^6ss. 1, c. 5, s. 3, which enacts, that "any person or persons ha\dng rent in arrear and due upon any demise, lease, or contract, may seize and secure any sheaves or cocks of corn, or corn loose, or in the straw, or hay lying or being in any barn or granary, or upon any hovel, stack, or rick, or otherwise upon any part of the land or ground charged with such rent, and lock up or detain the same in the place where it shall be found for or in the natiu^e of a distress, until the same shall be rej)levied or sold ; but the same must not be removed from such place to the damage of the owner." This pro^'ision is held to extend to corn in whatever state it may be, whether threshed or un- thi-eshed (/^). In default of the distress being replevied the landlord must sell at the expiration of five days (/) ; but the sale will be wholly void if sold before the crops are ripe (A-) . Hay or straw. The grantee of a rent-charge may distrain hay or straw, loose or in the stack, under the provisions of this statute, and also of the statute 4 Geo. II. c. 28, s. 5 (which gives in respect of rents-seek the same power of distress as exists in the cases of rent reserved upon leases) (/). But where there was a power in an annuity deed "to enter (e) 1 Eoll. Abr. 667 ; Bullen, (i) Piggott v. Bertles, 1 M. 91. &W. 441. (/) Ibid. {f^) Owen v. Legh, 3 B. & \q\ See Wihon v. Duckctf^ Aid. 470 ; Proudlove\. Ticem- 2 Mod. 61. ^otc, 1 Cr. & M. 326. (h) Bellasis v. Burhridge, 1 (/) Johnson v. Faulhier, 2 Lutw 214. Q. B. 925 ; Sm. L. & T. 3rd ed. 229. GOODS PKIVILEGED FKOM DISTRESS. 139 and distrain, and the distress tlien and there to detain, Part I. manage, sell, and dispose of in the same manner as Chap. V, distresses for rent, and as if the said annuity therehy granted was a rent reserved upon a lease for years ; " it was held that the powers given by these words were limited to those given to landlords by statute 2 Will. & Mary, c. 5, and did not extend to the statute 11 Greo. II. c. 19 (ni), so as to enable growing crops to be seized {>i). Com sown by a tenant at will, who died before harvest, and purchased by another person, cannot be distrained by the landlord for rent due from a subsequent tenant (o) , Whatever is in a man's present use ajid occupation is (i) Things in dming that time privileged from distress for rent, or for damage feasant ; the reason being that an attempt to dis- train things in such a situation might probably lead to a breach of the j)eace (j)). So, a horse which a man is actu- ally riding, or an axe in a man's hand cutting wood, or the like, cannot be distrained for rent {q) ; nor a horse or a dog which a man is leading by a string, nor any animal which is under the immediate control of the owner ; but a Dogs, dog used for sporting pm'poses, or permitted to rim into the woods, and not led by a string, is not exempt from a distress for damage feasant, though it would be if such dog were within sound of the owner's whistle, though he himself was out of sight (>•). It is not necessary for the person to aver that the peace was in danger, nor that the things taken were in manual use ; it is sufficient if they were in the actual possession of the plaintiff, under his personal care, and being actually used by him (s) . If f en-ets and nets in a warren are " damage feasant," a distress on them is good ; but if they (m) See anie, p. 138. Willes, 512. {}i)Mille)'Y. Green, 2Crom-^. (q) Co. Litt. 47 a; Storey & J. 142. V. Robinson, 6 T. E. 138. {o) Eato)i\.Sonthhy,'W\W.Q^, (r) Bunchy. Kenningto7i, 1 131. Q. B. 679. {p) Simpson v. Hartopp, 1 (s) Field v. Adamcs, 1 2 Ad. Sm. L. Cas. 8th ed. 455; & Ell. 649. 140 GOODS PKIVILEGED FROM DISTRESS. Part I, are in tlie hands of a man tliey cannot be distrained {f). Chap. y. So, also, a loom cannot be distrained when in the actual use of the weaver {u), nor can wearing apparel, if in actual use, but when not being worn by the owner it may be dis- trained {x) ; unless it is under the value of 5/., which is now absolutely privileged (//). Yarn being carried on a man's shoulders to be weighed cannot be distrained, any more than a net in a man's hand, or a horse on which a man is riding (z) . There is an old case (a) in which it has been held that horses and their harness fastened to a cart which was loaded with corn might be distrained for rent ; but this case is disapproved of in Simpson v. Hartopp. It has been held that if a man has two mill-stones, and only one is in use, and the other lies by not used, it may be distrained for rent {b) . There are several cases in which tools of trade, which, as we shall see hereafter, are pri\dleged conditionaJh/ [c), are absolufcJij privileged, if they be in actual use at the time. And these tools of trade, if in actual use, are privi- leged from distress, although there is no other sufficient distress on the premises (f/). But a threshing-machine is not privileged from distress, unless it is in actual use at the time, or there be other sufficient distress on the pre- mises {e). It will be seen later on in this chapter (/) that {t) Harg. Co. Litt. 47. See 36; hut see Storey x. Bohinson, also Rei/nell v. Cewipernoon, G T. E. 138; and Harg. n. 293, Cro. Car. 2i8. on Co. Litt. 47 a. (ic) Simpson v. Ilrir/opp, 1 (i) V. 14, H. 8, pi. 16, cited Sm. L. Cas. 8th ed. 455 ; in Simpson v. Hartopp, sujjia. Willes, 512; Watts y. Davis, (c) See post, pp. 150, 151. 1 Selwyn, N. P. 9th ed. 676. (d) Gorton v. Falkner, 4 {x) Bissctt v. Cahlirell, 1 T. E. 567. Peake, 50 ; Baijncs v. Smith, (e) Fenton v. Logan, 9 Bing. 1 Esp. 207. " 676 ; Nargatt v. Nias, 1 Ell. (y) Law of Distress Amend- & Ell. 439. meut Act, 1888, sec. 4. (/) Post, pp. 145, 151, Law (z) Read's case, Cro. Eliz. of Distress Amendment Act, 594. 1888, s. 4. (a) Webb V. Bell, 1 Vent. GOODS PRIVILEGED FROM DISTRESS. 141 the tools aud implements of a man's trade up to tlie value Part I. of 61. are now alj.solutely privileged from distress. Chap. V. Things ■\vlierein no man can liave an absolute and (5) Animalfl valuable property are by their very nature exempted from liability to a distress for rent : for everything distrained is jjresumed to be the property of the wrongdoer, which these things cannot be. Therefore deer and rabbits in their wild state, cats, and all animals fivf^ uafurcp, cannot be distrained (y). But if deer are kept in a private enclo- Deer, sure (not being a park), for the purpose of sale or profit, this so far changes their nature, by reducing them to a kind of stock or merchandise, that thoy may be di&trained for rent (//). So, also, deer in a jiark may be distrained, unless they are in a wild state {i} ; and bu-ds kept in cages, as paiTots or canaries, have been lield to be the subjects of a right of property, and may therefore bo distrained (k) . Pheasants and partridges before they can fly may also be private propei-ty, and the subject of larceny (/). Dogs, though formerly held to be witliiu this excei^tion, as animals in which no property could be had (y>/), must be considered liable to distress at the present day {ii). We must now consider the ride that goods in the (6) Things in custody of the law are not distrainable. Under this rule of^the law^ things abeady distrained for rent, or taken damage feasant, {g) Co. Litt. 47 a; Bullen, (/) Hep. v. Cory, 10 Cox, 90 ; 1 Sm. L. Cas. 461; Finch, C. C. 2:5 ; Be(/. v. S/tickle, L. E. 176; Bro. Abr. " Property," 1 C. C. E. 158. pi. 20 ; Com. Dig. Distress, (w) Co. Litt. 47 a. (C); Keilwav, 30 b ; 1 Eoll. (n) I)al■iesy.Pou■ell,^Yi\les, Abr. 666. 48 ; Binsteod v. Buck, 2 W. (A) Z>«r?'esv. Po?i'e//,AYilles, Black. 1117; Bunch v. Ken- 46; Bro. Abr. "Property," nington, 1 Q. B. 679 ; Sm. L. pi. 34. & T. 3rd ed. 222 ; and 4 Black. (?■) Fordx. Ti/nte, 31 L. J. Com. 235. The statutes which Ch. 177; Morgan v. Earl of make the stealing of dogs Abergavenny, 8 C. B. 768. punishable do not affect this (A) Bullen, 90. question. See Reg. v. Robin- son, 28 L. J. M. C. 58. 142 GOODS PRIVILEGED FROM DISTRESS. Part I. Chap. V. 8 Anne, c. 14, s. 1. Goods remaining on the premises after a ficti- tious bill of sale. goods in the hands of a bailiff, taken under an execution, or seized by process at the suit of the Crown, or taken under attachment, are privileged from distress (o). But where after the making of an interpleader order the sheriff with the consent of the execution creditor and the claimant temporarily withdrew fi'om possession ; it was held that the goods were no longer in custodid legis, and the landlord was entitled to distrain upon them although he knew that the interpleader proceedings were pending {p) . By 8 Anne, c. 14, s. 1, " No goods taken on any lands leased for life, years, at will, or otherwise, shall be taken in execution, unless the party at whose suit execution is sued, before removal of the goods, pay to the landlord the arrears of rent, if not exceeding one year's rent, and if more, then the amount of one year's rent due at the exe- cution " [q). Under this statute the goods are equally in custodid legis for this pm-pose, whether they are in the hands of the sheriff, or of his vendee (>•). If goods remain on the demised premises after a fictitious bill of sale made under an execution, they are liable to be distrained as before {s). And where the execution was ii-regular, as where a sheriff's officer executed Si fieri facias by going to the house and informing the debtor that he came to levy on his goods, and, laying his hand on a table, said, " I take this (o) Co. Litt. 47 a ; Willes, 136; 1 Inst. 47 a; Gilb. on Distress, ed. 1757, p. 44. ( p) Cropper V. Warner, 1 C. &E. 152. {q) There are similar enact- ments in the Acts relating to the County Courts and the Court of Admiralty. 24 Vict. c.lO, s. 16; 51 & 52 Vict. 0.43, s. 160. The statutory power of distress given by the 19 & 20 Vict. c. 108, s. 75, which statute has however been re- pealed by the 51 & 52 Vict, c. 43, supra, did not extend to cases in which the goods seized belonged to a stranger, and not to the tenant. Beard v. Knight j 8 E. & B. 865 ; Wilcoxon v. Searhy, 29 L. J. Ex. 154. (r) Wharton v. Naylor, 12 Q. B. 673 ; Riseley v. Ryle, 11 M. & W. 16. But see Ex parte Davis, In re Pollen^s Trustees, 54 L. T. N. S. 304. («) Smithy. Russell, ^HoMot. 400. GOODS PRIVILEGED FROM DISTRE.S.S. 14-3 taLlo," and ihuu lucked up bis warrant iu tlie taLle di'awer, Part I. took the key, and went away without leaving any person Chap. V. in possession, and after the writ was returnable the land- lord distrained tlie goods for rent ; it was held that tlie distress was lawful {f). A landlord's right to distrain revives if the execution has been waived (ii). Goods seized by a messenger under a bankruptcy have been held not to bo privileged, as being in the custody of the law, from distress for rent due from the bankrupt to his landlord (x) ; and the same rule applies to goods in the possession of a receiver in a legatee's suit (y). Formerly growing corn sold under an execution could Growing com not be distrained for rent, unless the pm^haser allowed it exSutbn'^" to remain on the ground an unreasonable time after it was ripe. Such com, whilst in the possession of the purchaser from the sheriff, being considered as in the custody of the law, could not be distrained upon ; but after the expiration of such reasonable time it might be (~). Now, by the 14 & 15 Vict. c. 25, s. 2, growing crops seized and sold by 14 & 15 Vict, the sheriff under an execution are liable, as long as they ^' ^' ^' ' remain on the land, to be distrained for the rent which becomes due after the seizure and sale, provided there is no other sufficient distress, notAvithstanding any sale or assignment which may have been made of such grooving crops by the sheriff (a) . (0 Blades V. Arundale, 1 Woodf. L. & T. 10th ed. pp. M. & S. 711. 405, 406. Outlawry in civil («) Seven v. Jfi/iill, 1 Lord proceedings is now abolished Ken. 370. by 42 & 43 Yict. c. 59. (.r) Briffffs y. Sowri/, S^l. & (z) Wharton \. Naylor, 12 W. 729 ; Neicton v. Scott, 9 Q. B. 673 ; Peacock v. Purvis, M. & W. 434; 10 M. & W. 2 Brod. & B. 362; Wright v. 471 ; Phillips v. Shervil, 6 Betves, 1 Ad. & Ell. 641 ; Ex Q. B. 944. parte Davis, In re Pollen's (y) Sutton V. Pees, 32 L. J. Trustees, 54 L. T. N. S. 304. Ch. 437. For decisions on (a) For remarks on this this subject with regard to statute, see Woodf. L. & T. outlawry, see Bullen, 85; 12th ed. 414. c. 50, s. 1. 144 GOODS PRIVILEGED FROM DISTRESS. Part I. And it is j)rovi(ied by the statute 56 Greo. III. c. 50, s. 1, Chap, y. that " no sheriff or other officer shall, by virtue of any 56 Geo. 3, process of any Court of law, carry off or sell or dispose of, from any lands let to farm, any straw, chaff, clover, &c., nor any roots or vegetables, being produce of such lands, in any case where, according to any covenant or written agreement, made for the benefit of the owner or landlord of any such farm, such straw, roots, or vegetables ought not to be taken off such lands, or which, by the tenor of such agreements, ought to be used or expended thereon, and of which agreements such sheriff or other officer shall have received a written notice before he shall have pro- ceeded to sale." By sect. 3, it is enacted that " any crops of produce of this description may be sold by the sheriff, subject to an undertaking to expend them on the land according to the custom of the country, or according to the terms of any covenant or written agreement which has been entered into by the tenant." 13}^ sect. 6, " In all cases where any purchaser or pur- chasers of any crops or produce hereinbefore mentioned shall have entered into any agreement with such sheriff, or other officer, touching the use or expenditm^e thereof on lands let to farm, it shall not be lawful for the owner or landlord of such lands to distrain for any rent on any corn, hay, straw, or other produce thereof which, at the time of such sale, and the execution of such agreement entered into under the provisions of this Act, shall have been severed from the soil and sold, subject to such agreement by such sheriff or other officer ; nor on any turnips, whether drawn or growing, if sold according to the provisions of this Act ; nor on any horses, sheep, or other cattle, nor on any beast whatsoever; nor on any waggons, carts or other in- plements of husbandry, which any person or persons shall employ, keep or use on such lands for the purpose of threshing out, carrying or consuming any such corn, hay, straw, turnips, or other produce, under the pro'visions of GOODS TRIVILEGED FROM DISTRESS. 145 the Act, and tlio agreement or agreements directed to Le Part I. entered into between the sheriff, or other officer, and the Chap. V. purchaser or purchasers of such crops and produce as hereinbot'ore are mentioned." Where a tenant is bound by his covenants, or the custom of the country, to consume on the premises all the com and ]iay growing on the farm, it was decided in the case of Abbvi/ V. retell (A) that the landlord, on distraining those articles, might dispose of them, subject to a condi- tion that the purchaser shall consume them on the premises. This decision was, however, questioned in the case of Fnishcr v. Lee (c), and finally overruled in the cases of liidfjway V. Lord Stafford {d) and Ilaickins v. IFalrond (e), wliicli decided that such a restriction could not be legally imposed by the landlord. An execution creditor who, by reason of his claiming some things distrainable at common law, is cb'iven to rely on this statute, is bound to bring him- self in his pleading witliin the provisions of the statute (/). By the Agricultural Holdings (England) Act, 1883 (g), Agricultural a new kind of absolute exemption from distress has arisen. S,*'^^^! . (England) But it must be remembered that this exemption only Act, 1883. applies to holdings uiu/cr the Act {//). It is provided by sect. 45 of this Act that " agricultm-al or other machinery which is the bond fide property of a person other than the tenant, and is on the premises of the tenant under a bond fide agreement with him for the hire or use thereof in the conduct of his business shall not bo distrained for rent in arrear." A f ui'ther change has taken place by the Law of Distress (7) Wearing Amendment Act, 1888 (0, which by sect. 4 (foUowing the ^^land^t^L (^.) 8 M. & W. 419. {/) Hutt V. Morrell, 11 (c) 10 M. & W. 709. Q. B. 425, 438. Id) 6 Exch. 405. {g) 46 & 47 Vict. e. 61. (e) L. E. 1 C. P. D. 280. (A) See;jo5^, p. 180. See also Joiies v. Hamj), 10 (0 51 & 52yict. c. 21. This M. & W. 700. section takes effect from the 7th of August, li o. 146 GOODS PRIVILEGED FROM DISTRESS. Part I. Chap. y. of trade to value of bl. II. Things conditionally privileged. Reason of the rule. (1) Beasts of the plough and instru- ments of husbandry. 51 Hen. 3, stat. 4. provisions of sect. 96 of tlie Coimtj Courts Act, 1846 (A-)), exempts from distress the wearing apparel and bedding of the tenant or his family, and the tools and implements of his trade to the value of 51. But this is not to extend to any case where the lease, term, or interest of the tenant has expired, and where possession of the premises in respect of which the rent is claimed has been demanded, and where the distress is made not earlier than seven days after such demand. We must now consider those things which are privileged from distress conditionally ; that is to say, provided there be other sufficient distress upon the premises. These are divided into two classes — (1) Beasts of the plough and instruments of husbandry, and (2) The instruments of a man's trade or profession. The reason of the rule laid down with regard to this conditional kind of privilege seems to have originated at common law, where the distress was considered as a mere pledge to compel the payment of the rent, and these things were looked upon with more favom-, as being pro- bably the chief means which the party distrained upon had of gaining his livelihood and to satisfy the demands of the distrainor (/). We have already mentioned that goods of this descrip- tion may be ahsolutely privileged on account of their being in actual use {in). Beasts of the plough and sheep are privileged, both by the common law, and by the statute 51 Hen. III. stat. 4, which enacts, that " no man shall be distrained by his beasts that gain his land, nor his sheep, either by the king (k) Eepealed by sect. 188, and re-enacted by sect. 147 of the County Courts Act, 1888. (Z) 3 Black. Com. 9; Willes, 515; Bullen, 101. (?;i) See ante, p. 139. CONDITIONALLY. 147 or any other, wliilo there is another sufficient distress to be Part I. found — (except for damage feasant)." Chap. V. Cart- colts and young steers, not broken in or used for harness or the plougli, arc not pri\dleged from distress " as beasts which gam tlie land " («). In case of a distress by a landlord for rent due from his Beasts of tenant, the sheep of an under-tenant are privileged, if there tenant, are other goods upon the premises sufficient to satisfy the rent; and the owner of sheep so seized is entitled to re- cover from the distrainor, not merely nominal damages, but the full value of the sheep (o). An action is not maintainable for distraining beasts of the plougli when there is no other sufficient subject of distress on the premises but growing crops (/;). And when a landlord distrains beasts of the plough, though there are other goods on the premises, he is not liable to an action for illegal distress, if he uses due diligence to ascertain whether such goods are a sufficient distress with- out them ; and he is not to be affected by a subsequent sale at a liigher price than was expected {q). In this exception must be also placed instrimients of Instruments husbandry, which are privileged ^^suh modo " in the same ° "^ ^° "^' way as beasts of the plough (;•). "We have already referred to the pri\ilege on agri- Agricultural cultiu-al machinery given by the Agiicultural Holdings (EngjaS) (England) Act, 1883 («), and we must now notice another Act, 1883. kind of privilege, conditional in its nature, afforded by sect. 45 of that Act, which provides, that "where live stock belonging to another person has been taken in by the tenant of a holding to which this Act applies, to be (n) Keen v. Priest, 4 H. & {q) JennerY.Yolland, 2 Chit. N. 236. 167. (o) Keen v. Priest, supra. (r) Davies v. Aston, 1 C. B. {p) Piggott V. Berths, 1 M. 746. & W. 441. (s) Ante, p. 145. l2 148 GOODS PRIVILEGED FROM DISTRESS. Part I. fed at a fair price, agreed to be paid for sucli feeding by Chap. v. t]2e owner of sucli stock to tbe tenant, such stock shall not be distrained by the landlord for rent, where there is other sufficient distress to be found; and, if so distrained, by reason of other sufficient distress not being found, there shall not be recovered by such distress a sum exceeding the amount of the price so agreed to be paid for the feed- ing, or if any part of such price has been paid exceeding the amount remaining unpaid ; and it shall be lawful for the o"WTier of such stock, at any time before it is sold, to redeem such stock by paying to the distrainor a sum equal to such price as aforesaid, and any payment so made to the distrainor shall be in full discharge as against the tenant of any sum of the like amount which would be otherwise due from the owner of the stock to the tenant in respect of the price of feeding : Provided always, that so long as any portion of such live stock shall remain on the said holding, the right to distrain such portion shall continue to the full extent of the price originally agreed to be paid for the feeding of the whole of such live stock, or if part of such price has been bona fide paid to the tenant under the agreement, then to the full extent of the price then remaining unpaid." Live stock agisted for a fair equivalent is -vsithin this section, as taken in to be fed at a ^\fai}' prkc^'' and may, therefore, be exempt fi'om distress, even although such equivalent he not money. Where cows were agisted on the terms "milk for meat," i.e., that the agister should take their milk in exchange for their pasturage, it was held that the agistment was -v^dthin the Act {() . Where cattle were distrained on a holding pursuant to an agreement by which the tenant, in consideration of 2/., allowed the owner " the exclusive right to feed the grass on the land for four weeks"; it was held that the cattle {{) London and Yorkshire Banh v. Belton and others, L. R. 15 Q. B. D. 457. CONDITIONALLY. 149 wero not " taken in " by tlie tenant " to bo fed at a fair Part I. price " witliin the above section, and were, therefore, not v^n^P- V- privileged from distress (») ; Field, J., observing (j*) — " The object of this Act, like that of tlie Lodgers' Goods Protection Act, is to prevent the goods of one man being taken to pay the debt of another, and so far as its policy is concerned, I see no valid distinction between the cases, and no reason why these cattle, just as much as cattle taken on tlie farm to be agisted, should not be exempt from distress." The words " fair price " mean " equivalent," and not necessarily money. By sect. 46, " Where any dispute arises — " (a) In resjiect of any distress having been le\'ied con- trary to the provisions of this Act ; or, " (b) As to the ownership of any live stock distrained, or as to the price to be paid for the feeding of such stock ; or, " (e) As to any other matter or tiling relating to a dis- tress on a holding to which this Act applies ; " such dispute may be heard and detennined by the County Coui-t, or by a Coui't of summary juiisdiction ; and any such County Com-t, or Court of summary jiiris- diction, may make an order for restoration of any live stock, or things unla'^'fully distrained, or may declare the price agreed to be paid, in the case where the price of the feeding is requii'ed to be ascertained, or may make any other order which justice requii-es. Any such dispute as mentioned in this section shall be deemed to be a matter in which the Court of summary jurisdiction has authority by law to make an order, or complaint, in pursuance of the Summary Jiuisdiction Acts ; but any person aggrieved by any decision of such Court of summary jm'isdiction under this section may, on giving such security to the other (u) Masters v. Green, L. E. (x) At p. 809. 20 Q. B. D. 807. 150 GOODS PEIVILEGED FROM DISTRESS. Part I. party as tlie Court may think just, appeal to a Court of Chap. V. general or quarter sessions." An appeal lies from a decision of a County Court judge in the matter of a dispute heard and determined by him under this section, under the general powers of appeal con- tained in the 13th section of the County Courts Act, 1867 (y). By sect. 48, " An order of the County Court, or of a Court of summary jurisdiction under this Act, shall not be quashed for want of form, or be removed by certiorari, or otherwise, into any Superior Court." (2.) The The instruments of a man's trade or profession are also mstruments conditionally privileged, pro^dded there be other sufficient 01 a man s -^ i . trade or distrcss on the premises. Thus, the axe of a carpenter pro esfcion. ^^^ ^^^ books of a scliolar are not liable to be distrained, if there is other sufficient distress on the premises ; and for the same reasons as those given above with regard to beasts of the plough and instruments of husbandry. It seems hardly necessary to observe that when the other goods upon the premises are not sufficient to satisfy the distress, the utensils of trade, and implements of husbandry, may be seized {z) . In the case of Roberts v. Jackson (a) the only other chattels on the premises were some lodger's furnitm-e, which the distrainor did not touch, and it was held by Lord Kenyon that under those circumstances it was justi- fiable to seize implements of trade; his Lordship remarking, " that the distrainor acted hmnanely in not distraining the goods of the lodger." A learned writer observes that this (y) Hanmcr v. Kinc/, 20 Lvnclhurst, C. B., therein ; Q. B. D. 422. This statute Fenion v. Logan, 2 L. J. C. P. has been repealed by the 102; Gorionv. FaIkner,4T.'R. County Courts Act, 1888. 565 ; Narcjett v. Nias, 1 Ell. & (s) Wood V. Clarke, 1 Tyr. Ell. 439. 314; and see remarks of Lord («) 2 Peake, 36. BY STATUTE. 151 seems rather a strong case {b) ; but recent legislation lias Part I. supported this view, and, as will be seen hereafter, ample Chap. Y. protection is now afforded to the goods of lodgers (c) . If a landlord, either expressly or impliedly, consents that chattels placed by a stranger on the tenant's land shall be exempt from distress, a distress by the landlord of such cattle whilst on the land will be unlawful (d). A fui'ther change has taken place with regard to this subject by the Law of Distress Amendment Act, 1888 (e), wliich by sect. 4 (following the provisions of sect. 96 of the County Courts Act, 1846 (/)), exempts from distress the tools and implements of a man's trade to the value of 5/. But this is not to extend to any case where the lease, term, or interest of the tenant has expired, and where pos- session of the premises in respect of which the rent is claimed has been demanded, and where the distress is made not earlier than seven days after such demand. The statute therefore now confers an absolute privilege on these articles to the extent mentioned. A recent statute has protected from distress railway iii. TWngs rolling stock when on hii^e. For by the statute 35 & 36 1^^^°^^ ^^ Yict. c. 50 (The Eailway Eolling Stock Protection Act, (i) Railway 1872), it is provided by sect. 3, that "rolling stock (r/) ^^j'^f^ '*°''''- being in a 'work '(A), shall not be liable to distress for Rolling Stock rent payable by a tenant of the work, if such rolling stock j^^^ ^1372! is not the actual property of such tenant, and has upon it a distinguishing metal plate afl&xed to a conspicuous part {b) See also Wilkinson v. (/) Eepealed by sect. 188, Jbbett, 2 F. & F. 300 ; and but re-enacted by sect. 147 of Peppercorn v. Hoffman, 12 L. the County Courts Act, 1888, J. Ex. 270. (y) " ito/^/«y s/'oc/c " includes (c) See 2)os(, p. 156. waggons, trucks, carriages of (d) Horsford Y. Webster, 1 all kinds, and locomotive en- Cr. M. & E. 696 ; Giles v. gines used on railways. Spencer, 3 C. B. N. S. 253; (A) " WorV includes any Walsh V. Rose, 6 Bing. 638. colliery, quarry, mine, manu- (e) 51 & 52 Vict. c. 21. See factory, warehouse, wharf, note {%), ante, p. 145. pier, or jetty, in or on which is any railway siding. 152 GOODS PRIVILEGED FROM DISTRESS. Part I. tliereof, or a clistinguisliing brand, or other mark con- Onap. V. spicuously impressed or made tliereon, siifficieutly indicat- ing the actual owner thereof." And by sect. 4, " Where any such roUing stock as aforesaid is distrained, a Court of summary jurisdiction may make against the landlord such summary order for restoration of the rolling stock, or for payment of the real value thereof, and respecting costs or otherwise, and may make against the person distraining such order in the matter, and respecting costs, as to the Com-t seems just." By sect. 5, " This Act shall not extend to protect from distress the interest which any tenant may have in any rolling stock otherwise protected under this Act, but such interest may be distrained upon by the landlord, and dis- posed of in the same manner as the whole interest of such tenant, if he had possessed the same ; and in case of dis- agreement between the landlord and the parties claiming such roUing stock, as to the mode of disposing of such interest, the same shall be settled by the Court of summary jurisdiction ; and the Court shall, on the application of either party, make such order therein as to the Court shall seem fit." By sect. 6, "If any party thinks himself aggrieved by any order or adjudication of a Com-t of summary jm-isdic- tion under this Act, or by dismissal of his complaint by any such Court, he may appeal therefrom, subject to the conditions and regulations following (that is to say) — " (1.) The appeal shall be made to some Court of general or quarter sessions for the county or place in which the cause of appeal arises, holden not less than fifteen days, and (unless adjourned by the Court of Appeal) not more than four months after the decision of the Court of sum- mary jurisdiction ; " (2.) The appellant shall, within seven days after the cause of ajopeal has arisen, give notice to the other party, and to the Court of summary juris- BY STATUTE. 153 diction, of liis intention to appeal, and the ground Part I. thereof ; Chap. Y. " (3.) The appellant shall, immediately after such notice, enter into a recognizance before a justice of the peace with two sufficient sureties, conditioned personally to try such appeal, and to abide the judgment of the Court thereon, and to pay such costs as may be awarded by the Court, or give such other secmity, by deposit of money or other- wise, as the justice thinks fit to allow." A locomotive engine which was hii'ed by a railway con- tractor from the respondents was seized under a distress for rent due from the contractor to the appellants. At the time the engine was seized it was standing in a shed which the contractor rented fi*om the appellants, and which was connected by a siding vdth the railway. It was held that the engine was " rolling stock " in a " work " within the meaning of sect. 3 of this Act, and was therefore not liable to distress for rent payable by the tenant of the work. The word "work" in sect. 3 means "■ any establishment or place used for the purpose of trade or manufactui"e which is connected by a line of railway by sidings along which the rolling stock may be propelled ; " Denman, J,, re- marking, — " The Act is a general Act to protect railway rolling stock from distraint, and I apprehend tliat the two general objects of the legislatm-e may probably be con- sidered to have been, to prevent the injustice and mischief which would take place if for a default in payment of rent in respect of land there could be a power on the part of the landlord to do such an infinite mischief to the person who was engaged in the use of engines and carriages working upon railways as would be done by selling them up for default in the payment of rent, I also think the legislature had in its mind the great injustice that would be done to persons letting such valuable property as this iipon hii'e, if when such things are on hire, and are being used for the 154 GOODS PRIVILEGED FROM DISTRESS. Part T. Chap. V. (2) Frames, &c., used in woollen ma- nufactories. 6 & 7 Vict. c. 40, piu'pose of tlie trade or business of a particular company, or of a particular inclividual, they could be seized in conse- quence of a default in payment of rent " {I). By the statute 6 & 7 Yict. c. 40 (an Act to amend the laws for the prevention of frauds and abuses by persons employed in the woollen, worsted, linen, cotton, flax, mohair, and silk hosiery manufactories ; and for the further securing the property of the manufacturers and the wages of the workmen engaged therein), it is enacted, by sect. 18, that " no frame, loom, or machine, materials, tools, or apparatus, which shall be entrusted for the purpose of being used or worked in any of the said manufactures, or any work connected therewith or incidental thereto, or any parts, branches, or processes thereof, whether such frame, loom, or machine, materials, tools, or apparatus shall or shall not be rented or taken by the hii-e, shall at any time or times hereafter be distrained or seized, or be liable to be distrained or seized, for rent or for debt, or under any execution, or other proceedings whatever, imless the rent be due or the money be owing by the owner of the said fi'ame, loom, or machine, or of the said materials, or tools, or aj)paratus aforesaid, of any part thereof respectively." And by sect. 19, " If any landlord or other person, by virtue of any distress waiTant, execution, or other pro- ceedings for rent in arrear, or money due, or alleged to be due, by any person whomsoever, shall distrain, seize, cany off, sell, or otherwise dispose of any fi'ame, loom, or machine, materials, tools, or apparatus, belonging to any other person, which shall have been entrusted for the pm*- pose of being used or worked in any of the said manu- factures, or any work connected therewith or incidental thereto, or any parts, branches, or processes thereof, and whether the same shall or shall not be rented or taken by the hire, or shall distrain, seize, carry off, sell, or othermse (J) Eastoji Estate and 2Iimng Property Co., 54 L. T. N. S. Co. V. Western Wagon and 735. BY STATUTE. 155 dispose of any materials as aforesaid, or any tools or Part I. apparatus as aforesaid, belonging to any other person, and Chap, v. shall refuse to restore possession of all such frames, looms, machines, tools, or apparatus to the person owning, letting, or entrusting the same, when demanded by him, or some person duly authorized by him, of the said landlord or other person, or the person acting as agent or bailiJffi of such landlord or other person, it shall and may be lawful to and for any justice of the peace, upon complaint on oath before him, to summon the said landlord or other person to appear before any two or more justices of the peace to answer the said complaint, and on proof of the said offence the said justices may thereupon order the property so seized, distrained, can-ied off, or sold, to be forthwith restored, and issue their warrant to a constable or constables empowering him or them to seize the said jjroperty wherever the same shall be found, and deliver possession thereof to the person owning, letting, or entrust- ing the same, and to levy by distress and sale of the goods of the said landlord or other person, the costs of obtaining the said order, and recovering and obtaining possession of the said property ; and in case the said property cannot be found and seized within a time not exceeding twenty-one days, to be limited in the said warrant, or in case the said property shall have been damaged by the same having been distrained, seized, carried off, or sold, then it shall be lawful for such two justices, or any other two justices, on proof thereof (the said landlord or other person having been first summoned by a justice), to issue theu- warrant to levy by distress and sale of the goods and chattels of such landlord or other person the full value of the said projDerty, or the amount of such damage, as the case may be, together with all costs of recoveiing and levying the same." By the Gasworks Clauses Act, 1847 (Jc), s. 14, all gas (3) Gas •^ ' \ /^ 7 D fittings. (A-) 10 & 11 Vict. C. 15. 156 GOODS PRIVILEGED FROM DISTRESS. Part I. Chap. Y. (4) Lodgers' goods. Lodgers' Goods Pro- tection Act, 1871. meters, being the property of a gas company incorporated by Act of Parliament, were absolutely privileged from distress. But this has now been repealed by the Statute Law Eevision Act, 1875 (/), except so far as incorporated with special Acts. By a case in which the Act of 1847 was incorporated, it was held that a gas stove let for hire was within the words " fittings for the gas," and therefore was not subject to distress. These words apply to all the apparatus used for the consumption and supply of gas{m). Another exemption has been created by the recent statute 34 & 35 Yict. c. 79 (The Lodgers' Goods Protec- tion Act, 1871), which, under certain conditions, protects the goods of lodgers from distress by a superior landlord. This statute, after reciting that " whereas lodgers are sub- jected to great loss and injustice by the exercise of the power possessed by the superior landlord to levy a distress on their fui'niture, goods, and chattels for arrears of rent due to such superior landlord by the immediate lessee or tenant," enacts that by sect. 1, "If any superior landlord shall levy, or authorize to be levied, a distress on any fm-- niture, goods, or chattels of any lodger, for arrears of rent due to such superior landlord by his immediate tenant, such lodger may serve such superior landlord, or the bailiff, or other person employed by him to levy such distress, with a declaration in writing (») made by such lodger, setting forth that such immediate tenant has no right of property or beneficial interest in the f ui-niture, goods, or chattels so dis- trained, or threatened to be distrained upon, and that such fm-niture, goods, or chattels, are the property, or in the lawful possession, of such lodger ; and also setting forth whether any, and what, rent is due, and for what period, {I) 38 & 39 Vict. c. 66. (w) The Gas Light and Coke Co. V. Hardy, 17 Q. B. D. 619. See also Gas Light and Coke Co. V. Herbert Smith and Co., 3 Times Law Eep. 15. (?0 For form of Declaration, see App. A. (15) ; and for In- ventory (16). lodgers' goods protection act, 1871. 157 from sucli lodger to liis immediate landlord ; and such Part I. lodger may pay to the superior landlord, or to the bailiff, C>hap. V . or other person employed by liim as aforesaid, the rent, if any, so due as last aforesaid, or so much thereof as shall be sufficient to discharge the claim of such superior landlord. And to such declaration shall be annexed a correct in- ventory, subscribed by the lodger, of the furniture, goods, and chattels referred to in the declaration ; and if any lodger shall make or subscribe such declaration and in- ventory, knowing the same, or either of them, to be untrue in any material particular, he shall be deemed guilty of a misdemeanor." And by sect. 2, " If any superior landlord, or any bailiff, or other person employed by him, shall, after being served with the before-mentioned declaration and inventory, and after, the lodger shall have paid, or tendered to such superior landlord, bailiff, or other person, the rent (if any) which by the last preceding section such lodger is autho- rized to pay, shall levy or proceed with a distress on the furnitm-e, goods, or chattels of the lodger, such superior landlord, bailiff, or other person, shall be deemed guilty of an illegal distress, and the lodger may apply to a justice of the peace for an order for the restoration to him of such goods ; and such application shall be heard before a sti- pendiary magistrate, or before two justices, in places where there is no stipendiary magistrate, and such magistrate or justices shall inquire into the truth of such declaration and inventory, and shall make such order for the recovery of the goods, or otherwise, as to him or them may seem just, and the superior landlord shall also be hable to an action at law at the suit of the lodger, in which action the tinith of the declaration and inventory may likewise be inquired into." By sect. 3, " Any payment made by any lodger invr- suant to the first section shall be deemed a valid payment on account of any rent due from him to his immediate landlord." ' lodorer. 158 GOODS PRIVILEGED FROM DISTRESS. Part I. It will be observed tliat tliis Act gives no clefinitioii of Chap. V. wlio is or is not a "lodger" ; and this omission has led to a series of decisions, which we will now discuss in detail. Wlio is a In Pliillips V. Henson (o), it was held that the mere fact of a person being an under-tenant is not sufficient to pre- vent his being a lodger within the meaning of the Act. So where F., who was tenant of a house under a lease for a term of years, made an agreement in writing with the plaintiff, by which he let to the plaintiff as a quarterly tenant, and at a quarterly rent, certain specified rooms, being all the rooms in such house except three, in which r. resided himself ; it was held that such agreement was not inconsistent with the plaintiff's being a " lodger," and as such entitled to the protection given by the Act. In the argument of this case the definition (of a " lodger " ), as suggested by Bovill, C. J., in Thompson v. Ward (p), was given, where he says, " Generally speaking a ' lodger ' is a person whose occupation is of a part of a house, and subordinate to, and in some degree under the control of, a landlord, or his representative, who either resides in or retains the possession of, or a dominion over the house generally, or over the outer door, and under such circum- stances as that the possession of any particular part of the house, held by the lodger, does not prevent the house generally being in the possession of the landlord." And in the case of Morton v. Falmcr (q), it was held that to constitute a person a " lodger " under this Act, there must be evidence of the retention by the immediate landlord, by himself or his servants, of some siich dominion, or power, over the house which he sublets, as the master of a house letting lodgings usually has ; although it is not absolutely necessary that the immediate landlord should himself reside on the promises so sublet by him. In this case Brett, L. J., remarks, " The statute does not give any (o) L. E. 3 C. P. D. 26. (g) 51 L. J. Q. B. D. 7— Ip) L. E. 6 C. P. 327, 3G0. Court of Appeal. lodgers' goods protection act, 1871. 159 definition of a ' lodger ' ; but I am of opinion that tlie Part T. word ' lodger ' must be taken to mean a lodger according Chap, v . to the understanding of that word by the majority of persons conversant with the modes of letting and occuj^y- ing houses in this country to lodgers and under-tenants. Tlie Comets have at various times given some tests which help to decide whether a person is a lodger or an under- tenant. I do not think it is necessary to give an exhaus- tive definition of the word ' lodger ' ; but it is clear that, if certain circumstances exist, then a person cannot be held to be a lodger. I will refer to two tests which have been given. The first given by Mr. Justice Maule, in Toms v. Luckeit (r), contains the fundamental proposition, which is as follows : " Where the owner of a house takes in a per- son to reside in a part of it, though such person has the exclusive possession of the rooms appropriated to him, and the uncontrolled right of ingress and egress, yet if the owner retains his character of master of the house, the individual so occupying part of it occupies it as a lodger only. It is clear, therefore, that if all that has been done is for the o^Tier or lessee of a house to give a man the use to live in it on certain terms, that man may be a tenant or an under-tenant ; but it cannot be said that the lessor has taken him in to lodge with him. It does not follow that if a man has been taken in to lodge "svdth another, he should live at a table, or sleep in the room with that other ; he may very well have the exclusive use of part of the house." A further test was given by Mr. Justice Blackburn in Allen v. The Overseers of Liverpool {s), where he said, "A lodger in a house, although he has the exclusive use of rooms in the house, in the sense that nobody else is to be there, and though the goods are stowed there" — (by which I understand him to mean, that the rooms may be unfurnished) — "yet he is not in exclusive occupation in {r) 5 C. B. 23. (s) L. E. 9 Q. B. 180. 1^0 GOODS PEIVILEGED FROM DISTRESS. Part I. that sense, because the laudlord is there for the purpose of Chap. V. being able, as landlords commonly do in the case of lodgings, to have his own servant to look after the house and the furnitiu'e, and has retained to himself the occupa- tion " — (that is, of the house) — " though he has agreed to give the exclusive occupation" — (that is, of the rooms) — " to the lodger. It follows, as it seems to me, that the person who takes in another to lodge must retain power in, and dominion over, the house, as the master of the house usually does in this country. It is not absolutely necessary that he should live in or sleep in the house ; he may live elsewhere, and yet reserve powder in, and dominion over, the house. If, however, he goes aw^ay — if he gives up all dealing with the house as master — then I do not think it is possible to say that he takes another person in to lodge with him." And again, in the case of Ness v. Sfcp/ie)ison (t), it w'as decided that if the landlord, reserving a room in a house, lets the rest of it to a person, but retains such control and dominion over it as is usually retained by masters of houses let for lodgings, the relation of landlord and "lodger" may exist between the paiiies within the mean- ing of the Act, although the lodger has the right of exclu- sively occupying the greater paii; of the premises, and has sepai-ate and uncontrolled power of ingress and egress, and neither the landlord or his agent sleeps or resides in the house, and the lodger acts as caretaker of the jDart reserved, the existence of the relationship of landlord and lodger being a question of fact. But in the recent case of Heau-ood v. Bone{u), the aj^i^ellant occupied the first floor and basement of premises at a yearly rent, carrying on the business of a publisher there, but sleej)ing and residing elsewhere. He had no key of the outer door, which was under the control of his inmiediate landlord, who admitted him every morning; (0 L. E. 9 Q. B. 245. («) L. E. 13 Q. B. D. 179. lodgers' goods protection act, 1871. 161 and it was held that the appellant was not a " lodger " Part I. within the meaning of the Act. Stephen, J., in his judg- Chap. V. ment, says : — " We have to say what, upon the whole, we think the statute means by the term 'lodger.' I have come to the conclusion that it meant a ' lodger ' in the poj)ular sense of the word, that is, one who sleeps upon the premises. In the ordinary use of language a person of average education would not call the appellant a lodger, because lodging, in the common acceptation, means living and residing at a place; and if you went further, and asked what was meant by li\ing and residence, in general the answer would be that the person fulfilled the descrip- tion if he slept there, that is, if he undressed and went to bed, staying there till he rose next morning in the usual way. If it is asked why the Act should have meant this rather than anything else, the answer is, that the object was to prevent poor persons from having their homes broken up by distress for rent by the superior landlord." With regard to the necessary notice to be given under the Act, it was decided, in Thivaites v. Wilding {v), that where the defendant let rooms to the brother of the plain- tiff, who let part to the plaintiJf , and rent being due from the plaintiff's brother to the defendant, the defendant dis- trained, and the plaintiff gave notice under the Act, and the distress was withdrawn on the plaintiff's brother pay- ing 11. and agreeing to pay the balance by instalments; and, on no instalments being paid, a second distress was put in, and the plaintiff did not serve another notice, and her goods were distrained ; the first notice in accordance with the Act was applicable to the fbst notice only, and that the plaintiff ought to have served a fresh notice when the second distress was put in. But where rent being due fi-om a tenant to a landlord, the latter put in a distress on the goods of the tenant's lodger in addition to those of the tenant, and these goods were sold before the expiration of {v) L. E. 11 Q. B. D. 421 ; 12 Q. B. D. 4. O. M 162 GOODS PRIVILEGED FROM DISTRESS. Part I. Chap. V, (5) Law of Distress Amendment Act, 1888. Wearing apparel, bed- ding, and tools to the Talue of ol. five clear days from the distress, contrary to the statute 2 Will. & Mary, sess. 1, c. 5, s. 2 {x) ; it was held, in an action brought by the lodger against the landlord, that he could recover the value of his goods sold, although he served no declaration on the landlord under the Act (?/) . It will be seen in this case that the landlord sold before the expiration of the five days, and so interfered with the rights of the lodger, depriving him of his privileges under the Act, The consequence was that the plaintiff lost his rights to the goods to wliich he would otherwise have been entitled. It was an illegal act on the part of the landlord by which the lodger suffered damage. In a case where there was an appeal from the refusal of the Queen's Bench Division to grant a rule nisi for a certiorari to bring up an order for restoration of goods, on the ground that the justices had no jurisdiction to make the order because the lodger had not stated in her declaration that she was a lodger, and whether, or no, any rent was due from her to her imme- diate landlord (no rent in fact being due from the lodger) ; it was held that it was not required by the first section of the Act that the declaration made under that section should state that the declarant was a lodger, and that where no rent was due it was not necessary that the declaration should state anything about rent, the absence of such statement amounting in substance to a statement that no rent was due ; and that therefore the declaration was sufficient (s). Another exemption has recently been conferred by the Law of Distress Amendment Act, 1888 («), by sect. 4 of which it is enacted that " from and after the passing of this Act the following goods and chattels shall be exemjst from distress for rent ; namely, any goods or chattels of the tenant or his family which would be protected from seizure in execution under sect. 96 of the Coimty Courts {x) See jjost, p. 242. (?/) Sharpe v. Fowle and ToiDiff, 12 Q. B. D. 385. (s) Ex 2}arte Harris, 16 Q. B. D. 130. (a) 51 & 52 Vict. c. 21. This Act does not apply to Scotland or Ireland, and conies into operation after the 31st October, 1888. lodgers' goods protection act, 1871. 163 Act, 1846, or any enactment amending or substituted for Part I. the same, provided that this enactment shall not extend to Chap, V. any case where the lease, term, or interest of the tenant has expired, and where possession of the premises in respect of which the rent is claimed has been demanded, and where the distress is made not earlier than seven days after such demand." By sect. 96 of the County Com-ts Act, 1846 (b), it County Courts is enacted that " every bailiff or officer executing any pro- -^^*' ^^^^' cess of execution issuing out of the said County Coiu-t and re-enacted against the goods and chattels of any person, may by by the County virtue thereof seize and take any of the goods and chattels ^^^J"*^ '^°*' of such persons (excepting the wearing apparel and bedding of such person or his family, and the tools and implements of his trade to the value of 5/., which shall to that extent be protected from such seizure)." It will be observed that no penalty is provided in the new Act for the breach of the above provision. The ob- ject of the Act is to protect the poorer classes, and yet, when they apply to a magistrate for summary relief (c) , on the ground that bedding, &c., has been wrongfully dis- trained, the only remedy that he can give them is to order a retm-n of the goods on payment of his rent. This might have been provided for by a clause imposing a penalty in such a case {d). It is difficult to understand why the word " expu-ed " should have been used at the end of sect. 4 of the new Act instead of the words " ended or determined " used in the Act of 8 Anne, c. 14. It does not appropriately refer to the determination of a tenancy from year to year by notice to quit. The object of the provision seems to be an inducement to the tenant to give w]) possession on demand; and if he does not quit within the given time, viz., seven days after demand, the landlord will have a more extended power of distress over his goods. (b) 9 & 10 Vict. c. 95, Mr. De Eutzen, in a case which has been repealed by heard at the Marylebone sect. 188, but re-enacted by PoHce Court, on Dec. 9, sect. 147 of the County Courts 1888, in which, also, it was Act, 1888. contended that though bed- (c) Under 2 & 3 Vict. c. 71, ding was privileged from sei- B. 39, post, p. 325. zure, that did not include the (d) See observations of bedstead. m2 164 CHAPTER VI. OF THE PROCEEDINGS IN A DISTRESS FOR RENT. I. (a) When rent is due. Wien in arrear. When a de- mand should be made. Difference between distress and re-entry. Having now considered tlie persons wlio are entitled to distrain, and what things may and may not he distrained, it next becomes necessary to discuss the proceedings to he adopted in carrying out a distress. And hefore doing so, we propose to examine the precise period at which rent becomes in arrear, and the amount for which a distress may he made. Eent is due on the morning of the day appointed for payment; but it is not in arrear until after midnight (a). Just before, and at sunset, is the time when by law a proper demand of it should be made, in order to take advantage of a condition of re-entry {h). It has been held that a demand of rent should be made such time before sunset as would allow suifieient light to enable the money to be counted ; but upon a distress for non-payment of rent a demand on the day is not neces- sary (c) , as it is in the case of a re-entry, where the whole interest or estate is defeated, or where any sum " nomine 2)ce)ue" is forfeited; in both which cases the demand ought to be made precisely at the day, in the one ease in respect of (a) Cole, Ejectment, 413 ; Dibble v. Bowater, 2 E. & B. 564 ; Cutting v. Derhxj, 2 W. Bl. 1077; Le/tley v. Mills, 4 T. E. 173 ; Bac. Abr. tit. Eent. (5) Duppa V. Mayo, 1 Saund. 287 ; Woodf. L. & T. 10th ed. 355. But see as to this, Ejectment, joosi", j). 190. (c) MauncVs case, 7 Eep. 112, cited byLawi'ence, J., in Doe V. Wandlass, 7 T. E. 117; Tlwmpson v. Field, Cro. Jac. 499 ; Fabian and Windsor'' s case, 1 Leon. 305 ; Tinckler v. Prentice, 4 Taunt. 549 ; Grilb. Eents, 91 ; Woodf. L. & T. 10th ed. 355. WHEN RENT IS DUE. 165 the condition, and in tlie otlier in respect of the penalty {d)- Part I. The person making the demand must remain on the land Chap. VI. till the sun has set, and the demand must be actually con- tinued till that time (e). A demand made on the proper day at one o'clock is clearly had (./'). For other purposes, however, the rent becomes due upon the midnight of the day on which it was reserved payable ; and therefore if the landlord die before midnight of that day the rent goes to his heii', as an incident to the rever- sion, and not to his executor, who would have taken it if the deceased had survived the midnight {(/) ; but payment to the lessor or his agent on the morning of the rent day is, if the lessor dies before noon, valid as against the heir, though not against the Crown (//). The period at which rent is considered to be due depends Terms of the upon the terms of each contract, whether express or im- be considered, plied ; and it is often a matter of difficulty to construe the contract rightly : where rent is reserved generally, mthout the iisual mention of half-yearly or C[uarterly payments, nothing becomes due until the end of the year (i) . Where, after signing a wiitten agreement for hiring premises at a yearly rent, in which no mention was made of the time when the rent was to be paid, the land- lord asked his tenant how he would like to pay his rent, and the tenant replied, " Quarterly," and the rent was paid accordingly quarterly ; it was held that the rent was still due annually, although quarterly payments were proved ; and that a distress for a quarter's rent was illegal, there being no new terms of letting, and the original agree- (d) See Thorp v. Hurt, W. ham v. Penrice, 1 P. Wms. N. 1886, p. 96. 177. (e) Acocks V. PhillijJS, 5 H. (7?) Choirs case, supra. & N. 183. (0 Cole V. Sury, Latch, (/) Doe d. Wheeldon v. 264 ; Graij v. Chamberlain, 4 Paw?, 3 C. & P. 613. C. & P. 260; Coomber v. {g) Duppa v. Maijo, 1 W. Howard, 1 C. B. 440 ; Bullen, Saund. 287 ; Cluii's case, 10 105. Co. Pep. 127; Lord Rocking- 166 PROCEEDINGS IN DISTRESS. Part I. ment being unaltered (J). Where an agreement was dated Chap. YI. the 31st of January, and a person thereby agreed to become tenant "at the customary time of entry" under certain conditions, at a certain rent, to be " paid at the usual time," " as agreed upon," and he entered at Lady- day (the usual time of entry being the 12th of May, and the usual time of rent becoming payable being once a year, at Michaelmas), but the day when the rent was paid being the 8th of January; it was held that this agreement did not necessarily import, in point of law, that the year's rent was to be payable at the end of the year from the time of entry ; but that it might be shown from the contemporaneous or subsequent dealings of the parties that their understanding was that the rent should become payable at an earlier period (A-) . And where A. demised a house to B. for a year certain, with six months' notice to quit, the rent to be paid quarterly or half- quarterly, if required, and the landlord received the rent for a certain period quarterly, and on the tenant's quitting before the expiration of a quarter, he distrained for the rent of that half-quarter ; it was held that the distress was illegal, as the landlord by requu'ing the rent quarterly had made his election, and could not distrain for the half-quarter without giving reasonable notice. Under such circumstances the distress was iwt equivalent to a demand (/). And where by an agreement, dated on the 8th of September, a house was let for seven years at an annual rent, payable quarterly, the first payment to be made on the 25th of March following ; it was held that a quarter's rent only became due on the 25th of March (m), and that in effect the payment for the first quarter was postponed until after the end of the term. (j) Turner v. Allday, 1 W. 463. Tyrwhitt & Granger, 819; see {I) Mallam v. Arden, 10 also Coomber v. Howard, 1 0. Bing. 299. B. 440. (m) Hutchins v. Scott, 2 (/c) Gore v. Lloyd, 12 M. & M. & W. 809. WHEN RENT IS DUE. 167 If rent be reserved quarterly, or half-yearly, eacli Part I. " gale " {n) is a distinct debt (o) ; and if a man makes a Chap. VI. lease on the 1st day of May, reserving rent payable quarterly, this shall be intended quarterly from the making of the lease ; for if the beginning of the quarter should be construed to be any other day than the date of the lease, the lessor would lose the profits of his land for some time, and, consequently, not have quarterly payment made during the continuance of the lease (p). When rent is made payable on certain stated days in the year, it becomes due on the first of the days occurring in point of time, without any regard to the local order of the words {q) . It may sometimes happen that by the terms of the Time of grace, reservation, the tenant has a time of grace given him for the pajonent of his rent, and that when rent is reserved payable at either of two periods at the election of the lessee, as at the feast of St. Michael, or within one month after {r), or at the four usual feasts, or within thirteen Aveeks after (s), it is not considered to be in arrear till after the last period limited for its payment. And where rent was reserved payable at the feast of St. John the Baptist, and at Christmas, or fourteen days after, the first pajnnent to be made at Christmas next after the date, it was decided that the tenant had fomieen days after the first Christmas, as well as every other in which to pay his rent (t). But it has been held that, if rent be made payable at Lady-day (n) The periodical pay- den, 171. nieuts of rent are called (;■) Pilkington v. Dalton, " gales," from " gavel," a Cro. EKz. 575 ; Chili's case, rent, or duty. Woodf. L. & 10 Co. Eep. 127 a; Blunden's T. 10th ed. 343; Spelman's cft.se, Cro. Eliz. 56 ; Thompson Glossary, voce Cabellum. v. Field, Cro. Jac. 500 ; Jos- (o) Welhy V. Phillips, 2 selin v. Josselin, 4 Leon. 19; Vern. 129. Bullen, 106. (/?) Gilb. Eents, 50; 2 Roll. (s) Cltm's case, siqjra; Cro. Abr. 449, 450. Jac. 309. (q) Hill V. Granffc, Plow- (/) Aiwn., 2 Shower, 77. 168 PROCEEDINGS IN DISTRESS. (b) Rent payable in advance. Part I. and Michaelmas, or within ten days after every feast, and Chap. VI. the lease expires at Michaelmas, in such a case the last payment becomes due on that day, and before the end of ten days ; for the law rejects the ten days after the last Michaelmas out of the term rather than that the lessor should lose the remedy for his rent (»). A covenant that a half-year's rent shall remain in the hands of the tenant till the last year, means the current half-year {x) It sometimes happens that by the special agreement of the parties to the lease the rent is made payable in advance, i. e., before the time for which it is to be paid has elapsed ; and it would in such case be distrainable as soon as the time specially fixed has elapsed, as there is no objection in point of law to such an agreement. In such cases the rent is not distrained for before the time of payment has elapsed, although such time of payment is accelerated, and made to occur earlier than in ordinary cases {if) ; but it should be clearly expressed whether the pajTiient in advance is intended to be of the cuiTent quarter from time to time during the whole term, or the first payment only (2) . By custom. This also takes place in some cases by custom ; as where rent was payable as soon as the half-year began, and the custom being incorporated into the lease gave the landlord a right to distrain immediately {a) . And where a person entered upon premises subject to the approbation of the landlord, who afterwards did not approve, but upon his (ii) Barwick v. Foster, Cro. Jac. 227, 233, 310 ; Bayleij v. Muriii, 1 Vent. 245; Gilb. Eents, 53; BuUen, 106, 107. (a;) Nichols afs. , Lofft, 393. (y) Lee v. Smith, 9 Ex. 662 ; Hopkins V. Helmore, 3 Nov. & P. 452. (;;) Holland v. Falser, 2 Stark. 161 ; Hopkins v. Hel- more, 8 A. & E. 463. (a) Buckley v. Taylor, 2 T. E. 600 ; Bac. Abr. Distress (C); Smith, L. & T. 3rd ed. 242 ; Jenner v. Cleyy, 1 Moo. & E. 213; Lee Y.Smith, supra; Morton V. Woods, L. E. 3 a B. 658; 4 Q. B. 293. RENT PAYABLE IN ADVANCE. 169 agi'eeing to pay an advanced rent as well for the time lie Part I. had been in possession as for the futm-e ; it was held Chap. VI. that the landlord might distrain for the advanced rent accrued before the agreement as well as for that accrued afterwards (b) . Rent payable in advance may be distrained for by the Where an landlord, although he is aware that an execution is about about Tohe to be put in at the suit of a judgment creditor (c). Where P^* ^°- a landlord let premises to a tenant from the loth of June, for five years, at a yearly rent of 100/., to become due and payable in advance (if demanded) by equal quarterly pay- ments on the 15th of September, December, March, and June every year, and there was a proviso that, if the rent was in aiTear for twenty-one days next after any of the days appointed for payment thereof in advance, after the same had been lawfully demanded, and not paid when demanded, then the lessor could re-enter, and no rent was demanded until August, 1852, when upon its not being paid the landlord distrained; it was held that the con- struction of this demise was that the rent was payable in advance; but was not to be actually paid until demanded, and, therefore, that the landlord was entitled to distrain (d). And again, where premises were let under an agreement that the yearly rent should be 110/. from the loth of October, 1847, and that " the rent should be payable in advance if the landlord required the same," and at the expiration of the first quailer the landlord demanded 27/. 10s. for a quarter's rent then due, and on its not being paid distrained for the 110;'.; it was held, that after such demand he had a right to distrain for the 27/. 10s., but not for the 110/. (^^). {b) 3I'Letsh v. Tate, Cowp. (r/) Williatyis v. Holmes, 8 781 ; Traceij v. Talbot, 6 Mod. Exch. 861. 214. (e) Clarke v. Holford, 2 C. (c) Harrison v. Barry, 7 <& K. 540. Price, 690. 170 PROCEEDINGS IN DISTRESS. Part I. It was a condition in a lease of a farm that the tenant Chap. Vi. should pay the last half-jear's rent in advance, which last half-year's rent should be considered as reserved and due on the 29th of September preceding, if the landlord should see cause for such demand. It was held that the landlord was entitled to demand the last half-year's rent, and to distrain for it at any time between the 29th of September and the expii-ation of the tenancy without demand previous to the 29th of September (/). But where B. having leased his land to the plaintilf at a rent payable quarterly, and subsequently mortgaged the lands to the defendants, who allowed B, to remain in the receipt of the rent, and subsequently to the mortgage B. appHed to the plaintiff (who was not aware of the mortgage) to pay him a year's rent in advance, and the plaintiff did so, and after the payment, and before the rent had become due, the defendants gave notice to the plaintiff to pay the rent to them, and on the plaintiif refusing to pay the defendants distrained for it ; it was held that payment of the rent before it became due was not a good payment as against the defendants (the mortgagees), and that as the plaintiff was still liable to pay them the rent, the defendants were justified in distraining [fj). Rent payable Where rent is payable only on a condition precedent, precedent^ '^^ ^^ ^^*^®^ ^'^^ become due until that condition is fulfilled. So in the case of MecJielan v. Wallace {h), where a furnished house was hired at a yearly rent for the house and furni- ture, and the tenant took possession, when it was fiu'nished only in part, under an agreement that it should be com- pletely furnished, though no time was specified ; it was held that the reservation was conditional, and no rent became payable till the remainder of the fur'nitiu-e was sent in. (/) Witty V. Williams, 10 (A) 7 A. & E. 54, n. ; see L. T. N. S. 457. also Regnart v. Porter, 7 Bing. {g) De NichollsY. Saunders, 451. L. E. 5 C. P. 589. AMOUNT OF RENT. 171 Witli respect to the amount of rent for whicli a distress Part I. may be made, it seems, that it must depend upon the Chap. vl. terms of the reservation or grant ; and according to such (g) xhe terms, whatever can be considered as an ascertained part of amount for ' _ ^ , -^ ■which a dis- the rent in arrear may be distrained for. But care must tress may be be taken that the distress is not made for more rent than ^^ ®" is really owing. In case of doubt the landlord's safest not be made course is to distrain for all that he claims, though, as it ^^^ ™.o^^ ^^^^ ,, than IS due. may turn out subsequently, a less amount was really -^^ ^^^^^ ^^ owing (/) ; for it was held (k) that where the defendants doubt. wrongfully seized goods of the plaintiff as a distress, and afterwards wrongfully sold the goods, although only a small part of the amount claimed was due, the mere taking or selling of more than was due was not actionable, unless it aj^peared from the evidence that the goods seized and sold were excessive with reference to the amount of the actual arrears. The proper course, as will be seen The best hereafter, is for the tenant to tender the amount really taken. due, and if the landlord refuses to accept that sum, try the disputed question of amount in an action of replevin (/). In cases where different properties are included in the Where same lease a difficulty sometimes arises, whether the rent pgrdes are reserved on all the properties is an entire rent, or whether included m . , 1 T . ^ the same it must be apportioned to the several properties (;>?). lease. Amounts severally accruing under separate demises must not be united in a single distress, even where two separate demises are contained in the same deed [ii), or where the {{) WoodfaU, L. & T. 10th (m) Gilb. Eents, 34 ; Win- ed. 41S. ter's case, 2 EoU. Abr. 448 ; (A-) Tancred v. Leyland, 16 Tunfield v. Rogers, Cro. Eliz. Q. B. 669 (overruling Taylor 340 ; Lee v. Arnold, 4 Leon. v. Henniker, 12 Ad. & Ell. 27; HilVscase, 4 Leon. 187; A%%) ; see di\s,o Croivder Y . Self , Knighfs case, Moore, 202; 2 Moo. & E. 190; Glyn v. BuUen, 109. Thomas, 11 Ex. 870; French {ri) Rogers v. Birkmire, V. Phillips, 1 H. & N. 564 ; Eep. Temp. Hardw. 245 ; Loring v. Warburton, E. B. & Tanjield v. Rogers, supra ; E. 507. Bullen, 110. (/) Glyti V. Thomas, supra. 172 PROCEEDINGS IN DISTRESS. Part I. tenant holds under one demise, and afterwards his posses- Chap. VI. sion is continued under another (o). Where the rent dis- Where the trained for consists of several amounts which fall due at of^severar*^ clilfereut times, several distresses must he made for it (p). amounts. Thus, where in an action of excessive distress the defendant pleaded that the whole sum distrained for was in arrear ; it was held that he was not precluded from insisting on certain arrears by the fact that since they became due other arrears had become due and had been distrained for, although the first warrant of distress stated the distress to be for rent due up to a day named, being subsequent to those on which the arrears then in question accrued, and although on the second distress the defendant stated Where rent is that it was for rent due since the last distress (q) . But where the rent is entire, the whole amount due must be distrained for at once, if sufficient goods can be found upon the premises, for " a man who has an entu'e duty shall not split the entu'e sum, and distrain for one part of it at one time, and for the other part of it at another time, and so tofies quofies for several times " (r). An action will, there- fore, lie against a landlord for goods taken on a second distress, where he might have taken sufficient on the first, or where he has voluntarily abandoned it («) . £aff!je V. The decisions on this point were fully discussed in the case of Bagge v. Maicby [t), where a landlord distrained upon the goods of a tenant who had previously committed an act of bankruptcy. Before any sale took place the landlord withdrew the distress without obtaining jjayment (o) Stanfield v. Hicks, Lord 1 Burr. 589, cited in Owens 'Raymond, 280 ; see also Leqg v. Wy7me, 4 El. & Bl. 579 ; V. Strudwick, 2 Salk. 414 ; IVallis v. Saville, 2 Lutw. Birchx. Wright, IT. R.^m. 1536; Lear v. Caldecott, 4 (/;) Palmer v. Strange, 1 Q. B. 123. Lev. 43; Bullen, 110. {s) Smith v. Goodwin, 4 B. {q) Gambrell v. Earl of & Ad. 413 ; Dawson v. Cropp, Falmouth, 4 Ad. & Ell. 73; 1 C. B. 961. 5 Ad. & EU. 403. (0 8 Ex. 641 ; Lear v. (r) Hutchins v. Chambers, Caldecott, 4 Q. B. 123. AMOUNT OF RENT. 173 of the rent, owing to a notice from one of tlie creditors of Part I. the tenant that he was taking proceedings in bankruptcy Chap. vl. against him; but at that time no assignee had been appointed. The landlord afterwards distrained a second time for the same rent. The Court held that as he had abandoned the first distress on account of a mere threat, which he ought to have disregarded, and without any sufficient excuse, the second distress was illegal : " There is nothing more clear," said Baron Parke, in delivering judgment, " than this, that a person cannot distrain t-s\dce for the same rent ; for if he has had an opportunity of levying the amount of the first distress, it is vexatious in him to levy the second, unless there be some legal ground for his adopting such a course. ... If there has been some mistake as to the value of the goods, and the land- lord fairly supposed the distress to be of the proper value at the time of levying the first distress, and he afterwards finds it to be insufficient, he may then distrain for the remainder ; or, if the tenant has done anj'thiug equivalent to saying, ' Forbear to distrain now, and postpone your distress to some other time ' ; in such cases the landlord may distrain a second time. But if there is a fail* oppor- tunity, and there is no lawful or legal cause why he should not work out the payment of the rent by reason of the first distress, his duty is to work it out by the first distress, and he cannot distrain again." If the entire sum due be distrained for, and there be Where no not sufficient goods found upon the premises, or the dis- 1^0(1^011 the trainer makes a mistake in the value of the goods seized, premises. he may afterwards complete his remedy by making a second seizure {(i) ; if a person were not permitted under such circumstances to distrain a second time it might reduce him to the necessity of taking effects of great value on the first seizure, and this would be far more prejudicial (m) Hutchins v. Chambers, supra ; IVallis v. Saville, supra. ^i'i PROCEEDINGS IN DISTRESS. Part I. to the tenant than to allow a second distress to be Chap. YI. made («•). (d) Deduc- It sometimes happens that the amoimt of rent for which rent. 9- tenant is liable, is capable of being reduced by payments which he has been forced to make on behalf of his land- lord, which payments were properly charged on the land and ought to have been paid by the landlord himself. In such a case the tenant is considered to have been authorized by the landlord to make such payments, and is allowed to treat the same as having been made in satis- faction, or part satisfaction of his rent. So where A., who rented a vault, which he sub-let to D. from year to year, became bankrupt, his sub-lessee, D., owing him 90/. for rent, and the superior landlord distrained upon D.'s goods for rent due from A. ; it w^as held that a tenant who has been compelled by a superior landlord to pay ground-rent and such-like charges, may treat such j^ayment as having been made in satisfaction of rent due to his immediate landlord, Rolfe, B., remarking, that "the principle on which those cases rests is this. The immediate landlord is bound to protect his tenant from all paramount claims ; and, therefore, when the tenant is compelled, in order to protect himself in the enjo}T3ient of the land in respect of which his rent is payable, to make payments, which ought, as between himself and his landlord, to have been made by the latter, he is considered as ha^dng been authorized by the landlord so to apply his rent due or accruing due " Q/). And in like manner where defendants rented a mine, and the plaintiffs sub-rented the same from the defendants, and the superior landlord distrained on the plaintiffs' sub-lessee for rent due to him from the defendants ; it w'as held that the amount realized by the distress was a satisfaction ^'jjro tanto " of the rent due by the sub-lessee {x) Per Lord Mansfield in (y) Graham v. Allsopp, 3 Hutchins Y. Chambers, siqjra. Ex. 186; Jones v. Morris, 18 L. J. Ex. 477. DEDUCTIONS FROM RENT. 175 to the defendants ; and this is so, not only when the Part I. sub-lessee pays out the distress, but also where goods Chap. Vl. belonging to him are sold under the distress (z). And where a tenant was compelled to pay an annuity charged upon the land, it was held that it was a good answer to the landlord's demand for rent, that before the landlord had anything in the premises, a rent- charge had been granted out of the land, that it was in arrear, and that the tenant under threat of a distress had been compelled to pay it (a). In fact, wherever a tenant may be ousted from his When tenant occupation on default made of a payment by his landlord deductions. he may pay in his discharge, and for the redemjjtion of the premises, and deduct such payment from his rent (/>), although the superior landlord may not have actually threatened to distrain, but has only demanded the rent, or allowed the occupying tenant time to pay (c). Whenever any such payments are made on behalf of the landlord, they should be deducted fi'om the rent of the current year, for the tenant will be able to derive no future advantage from them, if, instead of treating them as pay- ments of so much of his rent already in arrear, he allow them to accumulate and pay his rent in full in the meantime (d). Where a person was employed to prepare a statement of a debtor's affairs, and on the landlord threatening a distress for rent he paid the amount due upon the creditors' instructions, and a recei\T.ng order was subsequently made against the debtor ; it was held that under the cii'cum- (;:) 0^ Donoyhue v. Coal- note {q). brook Co., 26 L. T. N. S. 806 ; (c) Carter v. Carter, 5 Sapsford v. Fletcher, 4 T. E. Bing. 406 ; Valpij v. Manleij, 511; Wheeler Y. Branscombe, IC. B. 594; Taylor Y.Zamira, 5 Q. B. 373. supra ; see also Johnson v. (a) Taylor v. Zamira, 6 Jones, 9 A. & E. 809; Dyer Taunt. 524. v. ^oz6-%, 2 Bing. 94; Wilton {b) Smith Y. Pearce, Wood- v. Dunn, 17 Q. B. 294. fall, L. & T. 10th ed. 361, (d) BuUen, 113. 176 PROCEEDINGS IN DISTRESS. Part I. stances, and looking to the fact that a majority of the Lhap. V 1. creditors in number and vahie were of opinion that the payment was beneficial and should be refunded, rej)ayment ought to be allowed, but that the official receiver was entitled to deduct the costs of the hearing from the amount {e). Property tax. Property tax, being payable by the landlord notwith- standing any contract, if it be paid by the tenant it may be deducted from his rent (/). The same rule applies to payments such as land tax, sewers- rate, tithe rent-charge, &c. {[/) ; but such deductions must be made from the next rent due after such payment, as they cannot afterwards be retained or recovered by action from the landlord {//) ; nor can they be retained until they have been actually paid. Therefore, where under the Metropolitan Local Manage- ment Act, 1862 («}, which enacts that "a vestry may give notice to the occupier of a house to pay to them paving expenses, &c., owed them by the owner, and the occupier is entitled to deduct the amount which he is forced to pay from the rent which he owes to the owner, as it becomes due," and the vestry served an occupier mth a notice to pay them certain sums under the Act, and at the time the occupier owed his landlord one quarter's rent, and he told his landlord of the notice, and on a distress being levied by the landlord for the quarter's rent, he paid the vestry part of the amount due for the pa\T.ng expenses, and showed the receipt to the bailiff, who then withdi'ew ; it was held that the landlord's right of distress was only taken a^s'ny on {e) Ex parte Coverinff, Lire {h) Lumming Y.Bedborough, Ayshford, 35 W. E. 6,52. 15 M. & W. 438 ; Andreiv v. (/) Franklin v. Carter, 1 Hancock, I'B. Si'B. ^1 ; Stubbs C. B. 750; Suiinderson v. v. Parsons, 3 B. & Aid. 516; Hanson, 3 C. & P. 314; Carter Saunderson v. Hanson, 3 C. & v. Carter, supra. P. 314; Spragg y. Hcmiinond, {g) Palmer v. Earith, 14 2 B. & B. 59. M. & W. 431; Eedman & (/) 25 & 26 Vict. c. 102, Lyon, L. & T. 2nd ed. 131. s. 96. DOUBLE RENT. 177 actual payment by the occupier of the ichole amount of the Part I. paving expenses ; and that in this case, as the tenant had Chap. YI. only paid part of that amount, he was not protected by the Act, and therefore the distress was justifiable {j). Pay- ment of rent under a distress is not a conclusive admission of title in the distrainor, but may be rebutted by showing that he never had any title (/>•) . By sect. 47 of the Agricultural Holdings (England) Agricultural Act, 1883 (/), it is enacted, that where the compensation (England) due under this Act, or under any custom or contract, to a ^^'^' ^^^'*- tenant, has been ascertained before the landlord distrains for rent due, the amount of such compensation may be set off against the rent due, and the landlord sliall not be entitled to distrain for more than the balance. In one case landlords are entitled to distrain for double (e) Double the amount of rent reserved under the statute 11 Geo. II. ^^ ^^^ ^ c. 19, s. 18, which, after reciting "that great inconveniences c. 19, s. 18. happen to landlords, whose tenants have power to deter- mine their tenancies by giving notice to quit the premises by them holden, and yet refusing to deliver up the posses- sion, when the landlord has agreed with another tenant for the same," enacts, " that in case any tenant or tenants shall give notice to his or their landlord of his or their intention to quit the premises at a particular time, and shall not deliver up possession accordingly, he or they shall pay to his landlord double the former rent, for the whole time he or they shall hold the premises after the expiration of such notice ; and that such double rent shall be levied, sued for, and recovered, as the former single rent might have been." {j) Ryan v. Thompson, 37 of the rent itself, is not suffi- L. J. C P. 134; Eedman & cient ; Bullen, 114. Lyon, L. & T. 2nd ed. 145. {k) Knight y. Cox, 18 C. B. And a mere set-off or pay- 645. ment, which cannot be proved {l) 46 & 47 Vict. c. 61. to be a distinct appropriation O. N* 178 PROCEEDINGS IN DISTRESS. Part I. Chap. VI. To what the Act applies. R<^covery in the County Court. (f) Effect of Statutes of Limitation. 3 & 4 Will, c. 27, s. 42. 4, To what this section applies. 38 & 39 Vict. c. 57, s. 1. This Act only applies where the tenant has given a notice binding npon him to quit upon the expiration of the term specified in the notice, and npon whicli the landlord might at that time act and bring ejectment {m) ; so that if the notice is too vague it is not within the Act(«). The notice to quit need not be in writing (o) . Double rent may be recovered by distress or by action ; and where the amount claimed does not exceed 50/. it may be recovered in the County Coui't [j^)- The landlord may lose his right to distrain by the lapse of time. By 3 & 4 Will. IV. c. 27, s. 42, it is enacted, that " No arrears of rent, or interest in respect of money charged on rent, or damages in respect of arrears, shall be recovered by distress, action, or suit, but within six years next after the same shall have become due, or next after an acknow- ledgment of the same in writing shall have been given to the person entitled thereto, or his agent, signed by the person by whom the same was payable, or his agent." This section applies only to rents reserved on ordinary leases [q). But although only six years can be recovered by distress, ticenty years' arrears may sometimes be re- covered in an action of covenant or debt (r). By 38 & 39 Vict. c. 57, s. 1 (which repeals sect. 2 of 3 & 4 Will. IV. c. 27), it is provided that no person shall (wi) Johnstone v. Huddle- stone, 4 B. & C. 922 ; see also Humberstone v. Dubois, 10 M. & W. 765. ill) Farrance v. Elkington^ 2 Camp. 591 ; Bullen, 116. (o) Timmins v. Raclijison, 3 Burr. 1603. (j'j) Wickham v. Lee^ 12 Q. B. 521. (y) Humphrey v. Gery, 7 C. B. 567; Manning v. Phelps, 10 Ex. 59. (r) 3 & 4 WiU. 4, c. 42, s. 3. This statute, however, only refers to debts on cove- nant, and does not mention distresses ; see Hunter v. Nockold, 1 Mac. & Gor. 640 ; Paget v. Foley, 2 Bing. N. C. 679 ; Strachan v. Thomas^ 12 A. & E. 536. STATUTES OF LIMITATIOX. 179 make an entry or distress, or bring an action to recover Part I. any land or rent, but witliin twelve years next after the Chap. VI. right of entry, distress, or action has first accrued. This section is substantially the same as sect. 2 of 3 & 4 Will. IV. e. 27, but the decisions on the latter section are still applicable. So it does not apply to rents reserved on a demise, but to rents where a distinct estate may be had, independently of any title to the land out of which the rent issues ; as, for example, an ancient quit-rent, and a fee-farm rent reserved in letters patent (s). By sect. 34 of 3 & 4 Will. IV. c. 27, it is enacted that at the determination of the period limited by this Act to any person for making an entry or distress, the right and title of such person to the land for the recovery whereof such distress might have been made or brought witliin such period shall be extinguished {t). Where a rent- charge had been received from the occu- pier of one part of the premises charged down to a recent period, and then for the first time a distress was levied on the occupier of another part, which for more than twenty years had been in a separate ownership, and the owner or occupier of which had never before paid any of the rent ; it was held, that the right to distrain for the rent on that part of the premises charged was not barred by the 3 & 4 Will. IV. c. 27 00- The only way, it seems, in which the repealed section or the substituted section now in force can affect the right of making a distress, is by its operation in destroying the (s) Grant v. Ellis, 9 M. & 228 ; and Esdaile v. Payne, W. 113 ; PagetY. Foley, supra; 13 App. Cas. 613. Doe d. Angell v. Angell, 9 {() (See Lyell v. Kennedy, Q. B. 328 ; Dean of Ely v. 18 Q. B. D. 807. Cash, 15 M. & W. 617; Oioen {ti) Woodcock v. Titterton. y. De Beauvois, 5 Exch. 166. 12 W. E. Q. B. 685 ; Wood- See also Irish Land Commis- fall's L. & T. 10th ed. 409. sion V. Grcmt, 52 L. T. N. S. x2 180 PROCEEDINGS IN DISTRESS. Part I. right to recover the Laud itself after the period of limita- Ohap. Vl. tion which it mentions (.r). Distinction The distinction between sect. 2 and sect. 42 of the 3 & 4 sect. 2 and Will. TV. c. 27, is Well illustrated in the case of James v. sect. 42 of S(dter(y), which referred to the arrears on an annuity 3 & 4 "Will. 4 \^ jT ^ ^ ^ J c. 27. ' ' created by will, and in which Tindal, C. J., says : " Now upon reference to the statute 3 & 4 Will. IV. c. 27, it appears to have provided two distinct periods of limitation, within which all distresses for arrears of annuities must he made, the two periods being prescribed in respect of claims and objects in their oicn nature perfecthj distinct. " The 2nd section contemplates and provides for the case where the right or title to the annuity itself is dis- puted. The 42nd section contemplates and provides for the case wdiere the title to the annuity is not disj)uted, but the distress is made ./or the arrears dae.'" Agricultural By the Agricultm-al Holdings (England) Act, 1883 (Eno-land) ('^^ '^ '^^ Vict. c. 61), which Came into force on the 1st of Act, 1883. January, 1884, certain important provisions are made with regard to the right to distrain for the rent of any holding to which that Act applies. By sect. 54, "Nothing in this Act shall a2:)ply to a holding that is not either wholly agricultm-al or wholly pastoral, or in part agricultm-al and as to the residue pastoral, or in whole or in part cultivated as a market garden, or to any holding let to the tenant dm'ing his continuance in any office, a2:)pointment, or employment held under the landlord." By sect. 44 it is enacted, that " after the commencement of the Act it shall not be lawful for any landlord entitled to the rent of any holding to which this Act applies to distrain for rent, which became due in respect of such holding more than one year before the making of such (x) Sm. L. & T. 3rd ed. (y) 2 Biug. N. C. 505 ; see p. 209. also Strachan v. Thomas^ 12 A. & E. 536. DKMAXD OF RENT. 181 distress, except in the ease of arrears of rent in respect of Part I. a holding to which this Act apphes existing at the time of Chap. vl. the passing of this Act, wliich arrears shall be recoverable by distress np to the first clay of January, 1885, to the same extent as if this Act had not loassccl. " Provided that, where it aj^pears that according to the ordinary course of dealing between the landlord and tenant of a holding the pajnnent of the rent of such holding has been allowed to be deferred until the expira- tion of a quarter of a year or half a year after the date at which such rent legally became due, then for the purpose of this section the rent of such holding shall be deemed to have become due at the expiration of such C[uarter or half- year as aforesaid, as the case may be, and not at the date at which it legally became due." It was held that under the proviso of this section a land- lord can distrain for all rent which his agreement with his tenant made payable within the year preceding the distress, both what was due more than a year before the distress, but which was collected within the year, and also that which was due within the year, but collected at a date subsequent to the distress, and that, too, although the whole amount was more than one year's rent (s) . No demand is necessary, as a general rule, before (g) Demand making a distress : for it is the duty of the tenant to pay ^oiiTto^a'^" or tender his rent when due to his landlord, and the very distress, fact of the distress is considered as a legal demand of such rent. This apphes where there is a clause in the lease that the lessor may distrain " if the rent is not paid, being latvfuUy demandecV {a). (z) RcBeiv, Ex parte Bull, 10 Bing. 299 ; Bac. Abr. 5th 18 Q. B. D. 642. ed. vol. vi. (1), tit. " Ptont " ; (a) Broicne v. Dnnnery, Woodfall's L. & T. 10th ed. Hob. 208 ; Kind v. Amnienj, p. 289. Hutton, 23; ]\Iallam v. Arde?i, 182 PROCEEDINGS IN DISTRESS. Part I. Chap. YI. Power of dis- tress granted after demand. AVhen a demand is necessaiy. But where the power of distress is granted after demand, or, the rent being demanded " oif the land," or " of the tenant personally," a demand in such cases is necessary before a distress can be made {h). So where A. demised a house to B. for a year certain, with six months' notice to quit, the rent to be paid quarterly or half- quarterly if requii-ed, and the landlord received the rent for a certain period quarferhj, and on the tenant's quitting before the exjoii-ation of a quarter, he distrained for the rent of that half-quarter ; it was held that the distress was illegal, as the landlord, by receiving the rent quarterly, had made his election, and could not distrain for the half-quarter without giving reasonable notice. Under such circum- stances the rent was not equivalent to a demand (c). Where the rent is reserved payable on a certain day, and the tenant is ready on the land to pay it, but the landlord is not there to receive it, the rent still remains due, and the landlord may still distrain for it on making a sub- sequent demand. So, also, where the tenant tenders the rent to the landlord, he cannot distrain for it mthout a previous demand (//). The same rules apply ^dth respect to rent-charges as to those of rent-service (e) . We have abeady noticed the distinction between a dis- tress for non-payment of rent, and a re-entry, mth regard (h) Browne v. Dunnery, Hob. 208 ; Kidwelly v. Brand, Plowd. 69. (c) Mallam v. Arden, 10 Bing. 299. As to demand for a sum nomine poence^ see ante, p. 164. ((/) Bac. Abr. 5th ed. vol. vi. (1), tit. "Eent"; Cranley ■y.Klngswell, Hob. 207; Home V. Lewin, Lord Ea^Txioiid, 639, 641 ; Mannd^s case, 7 Co. Eep. 28 ; Pirn v. Greville, 6 Esp. 95; Biillen, 119. (e) 3Iaiind's case, sujjra ; see also as to demand of rent, Ferryman y. Boirden, Het. 59; Fo.r V. Vaughan, Het. 86; Dethick V. Brodhorn, 2 Sid. 110, 117; Dennis v. Bosden, 1 And. 253; Wicks v. Dennis, 1 Leo. 190; Swynerton v. Mills, Br. & Gr. 178; Bullen, 119, note 9. DEMAND OF RENT. 183 to a demand. In the case of a re-entry, a demand is Part I. necessary (/), unless dispensed mth {g). Chap. V I. A demand of a certain sum, made up of two sums claimed on two distinct grounds, is not a " demand " of either; therefore, where a railway company, entitled to distrain for tolls, demanded a smn in gross made up of two sums, the one due for tolls, the other not so due, and the party tendered the amount due for tolls, as being all that was due ; it was held that the company were not entitled to distrain ; Watson, B., remarking, " that before they could distrain for the toll they must have demanded thetoU"(/0. A lease of a colliery contained a proviso that if and whenever any part of the rents and royalties thereby pre- served should be in arrear for thirty days after the same " shall have been legally demanded," the lessors might enter upon the demised premises or any part thereof, and might seize and distrain any machinery thereon, or in, uj)on, or about any buildings or land wherever the same might be used for the working of the mines; and the lease also contained a jDroviso for re-entry for non-payment of rents or royalties for the space of three calendar months after the same " shall have been lawfully demanded." The lessor distrained for arrears of rent the goods and chattels in and u]3on land used in connection with the colliery, and, which were not comprised in the lease, having previously made many demands for such arrears both by letter and verbally, more than thii-ty days before the distress was levied. The question was whether the words " legally demanded " meant that the demand was to be made according to the strict rules of the common law. It was held that the strict rules of the common law, with respect to a formal demand for rent, need not be {/) But see as to this, (A) Field v. Newjwrt Jiail- Ejectment, posi, p. 190. war/ Company/, 27 L. J. Ex. (y) See ante, p. 164. 396. 184 PEOCEEDINGS IN DISTRESS. Part I. followed to enable the landlord to exercise his power of Chap. VI. distraint (/). II. (a) Distress "when to be made as to time. Must be made between sun- rise and sun- set. Time -when sunrise and sunset take place. It is another rule, that a distress cannot be made in the night-time. It must be between sunrise and sunset (Jc). This is of very ancient origin, and the reason given seems to be, because otherwise the tenant would have no o]iportunitj to make a tender of the amount due, which he might possibly have done to avoid the distress (/). A distress for rent before sunrise, or after sunset, is illegal, although it is not dark at the time. Some doubt has been felt as to the exact time when sunrise and sunset take place (m), Baron Martin observing, "that the ride is, for people to distrain in the day-time, and not rim it very fine between simrise and sunset. But, although there may be circumstances under which it may be difficidt to determine what mil be the proper e"vidence of sunrise or sunset, yet ordinarily the time by the clock, coupled with the Almanack, will be some e^ddence, and if unanswered sufficient ; and if by such evidence it clearly appears that in any view the distress was before the sun had risen, or after it had set, the distress will be illegal." Therefore, where a distress was taken about eight o'clock, and by the Almanack the sun set just after seven, and in another case it was taken between two and three o'clock in the morning (on which day by the Almanack the sun rose at half -past foiu'), and there was no other e\ddence on the point ; it was held, that in both cases the evidence was sufficient to find the distresses illegal {n). (i) Thorp V. Hurt, W. N. 1886, p. 96. (A-) Tutton V. Darlie, 5 H. & N. 647 ; Nixon v. Freeman, ibid.; Sm. L. & T. 3rd ed. 243. {I) Co. Litt. 142 a ; Alden- hurgh v. Peaple, 6 C. & P. 212. (m) See Gilb. on Distress, 49 ; "Mirror" for meaning of word "night"; Year Books, 11 Hen. 7, 10 Edw. 3, p. 21, pi. 37 ; Doctor and Student, chap. 9, p. 128 ; 4 Black. Com. 422. (h) Tutton V. Darke, 5 H. & EXriKAriON OF TENANCY. 185 It was a rule at common law that a landlord could not Part I. distrain after the determination of the tenancy; for thereby Chap. YI. the privity of estate was destroyed (o), even though the (b) Distress tenant continued in occupation (/;). To remedy this it was ^f^^^ expu-a- ■^ ^-^ ^ ^ tion of ten- provided by the statute 8 Anne, c. 14, ss. 6, 7, that " any ancy. person having rent in arrear, or due upon any lease for 8 Anne, c. 14, life or Kves, or for years, or at will, ended or determined, ' ' might distrain for such arrears after the determination of the said respective leases, in the same manner as they might have done if such lease had not been ended or determined ; pro\dded that 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 dming the possession of the tenant from whom such arrears became due." Before this statute was passed, if rent had been reserved payable at Lady-clay and at Michaelmas, the landlord would have lost his remedy by distress for his last half- year's rent ; for he could not have distrained for it before it was due, and it would not have become due till the last moment of Michaelmas-day, when the term would have been at an end. In consequence of this, it was usual, in Lord Coke's time, to reserve the last quarter's rent in advance {q) . It has been decided upon this statute that Decisions on when a tenant by his landlord's permission held over part of the demised premises after the tenancy had expii-ed, the landlord might distrain on that part wdthin six months after the expiration of the tenancy, the statute not being confined to a tortious holding over, or to the holding N. 647 ; Kixon v. Freeman, (o) Pennant'' s case, 3 Co. ibid.; see also Collier Y.Nokes, Eep. 64; Bro. Dist. pi. 74; 2 C. & K. 1013; Lainb v. 1 Inst. 47 b; Bradby, 90; Wall, 1 F. &F. 503; Edmond- Tutter v. Frijer, AVinch. 7. son V. Nuttall, 17 C. B. N. S. (;>») Williams v. Stiven, 9 280; Attack v. Bramicell, 3 Q. B. 14. B. & S. 520; Dibble v. Bo- {q) Co. Litt. 47 b; Sm. L. rvater, 2 E. & B. 564. & T. 3rd ed. p. 246. 186 PROCEEDINGS IN DISTKESS. Part I. over of tlie whole premises (r). But where a tenant of a Chap. VI. farm, having remained a few clays after the expiration of his term, and after entry hy a new tenant, went away leaving a cow and some pigs, but giving no further intimation of any intention of retm-ning or continuing to hold any part of the farm ; it was held that this did not constitute a possession sufficient to justify the landlord in distraining the cow and pigs so left for arrears of rent (s). Custom of the Where by the custom of the coiuitry {t), or the agree- coun ry. j^ent of the parties (?^), the tenant leaves his away-going crop in the barns, or stacked on the premises, after the determination of his term, but within the time allowed by the custom of the country for the outgoing tenant to get in and dispose of his crop, it may be distrained by the landlord for arrears remaining due, although six months have elapsed since the expii'ation of the lease ; for this additional period is considered as a prolongation of the tenancy, and not a mere continuance in possession. The custom is, in fact, a tacit agreement between the parties, that the contract between them shall continue until a certain time ; and therefore, until such time, it must con- tinue v/ith all its original rights and properties {x). Sucoeeding A landlord who succeeds on the death of the previous under 14 & 15 landlord, and who is entitled by sect. 1 of 14 & 15 Vict. Vict. c. 25, (3. 25, to receive a proportion of rent from the tenant in lieu of emblements, may recover such rent by dis- tress (y). And where the original tenant dies before the expirati'on of his term, and his administrator continues in possession during the remainder, and after the expiration of it, (r) Nuttall V. Staunton, 4 Puleston, 13 M. & W. 358, B. &C. 51. (?<) Knight V. Bennett, 3 («) Taylorson v. Peters, 7 Bing. 364 ; Boraston v. Green^ A. & E. 110. 16 East, 81. {f) Beavan v. Delahey, 1 {x) BuUeu, 121. H. Black. 5 ; Leivis v. Harris, (y) Haines v. Welch and ibid. 1, n. a; Gripths v. 3Iarriott, Ij. B. 4 C. T. 91. EXriRATION OF TENANCY. 187 a distress may be taken for tlie rent due for the whole Part I. term (s). Chap. VI. But where a mortgagor agreed to become tenant to the mortgagees during their will at a rent, subject to powers of distress and entry, and the mortgagor died leaving his widow in possession ; it was held that the deed created only a tenancy at will, and no distress could be made on the goods, because not only the tenancy, but also the possession of the tenant from whom the arrears became due, had ceased (a). Where the defendant, as sheriff, on behalf of an execu- tion creditor, seized the goods of the tenant whilst in possession within six months after the determination of his lease, and caused the goods to be sold, and the proceeds given to the creditors, without satisfy-in g the arrears of rent due to the plaintiffs as landlords ; it was held, that the landlord's right to a year's rent under the first section of the 8 Anne, c. 14, ceased upon the determination of the lease, although by sections G and 7 of that statute he retained a power of distress for six months afterwards (b). Where the plaintiff occupied a house as tenant to the defendant, the term expiring on the 29th September, and he removed his goods from the premises on the 27th, 28th and 29tli of September, and on the 18th of October the defendant seized the goods off the premises as a distress for rent ; it was held, that the defendant was not entitled to Seizing goods seize the goods off the premises under the 11 Greo. II. mises.^ ^^^' c. 19, s. 1 ((?), unless he could have seized the same goods under the 8 Anne, c. 14, s. 7, if they had remained on the premises ; and as by the 8 Anne, c. 14, goods can only be seized during the possession of the tenant, the seizm^e was wrongful (f/). (^^ Braithwaite v. Cooksei/, [b) Cox v. Leiyh, L. E. 9 1 H.' Black. 465. Q. B. 333. (o) Turner v. Barnes, 2 B. (c) Post, p. 196. & S. 435. (f/) Gray v. Stait, L. E. 11 Q. B. D. 668. 188 PROCEEDINGS IN DISTRESS. Part I. The statute applies only to cases wliere the tenancy has Chap. YI. heen determined by lapse of time, or perhaps by notice to To what the q^^it, but not to cases where it has been put an end to by statute ^Y\e tenant's own wrongful disclaimer (c) . applies. '^ ^ ■' A lessor who lets to an under-tenant cannot after the term has expired enforce the continuance of the under- tenancy by distress, if the under-tenant refuses to acknow- ledge him as landlord, or pays him under threat of distress, although the under-tenant still retains the pos- session (,/). The provision of the statute 8 Anne, c. 14, ss. 6 and 7, gives the remedy after the expiration of the tenancy to the landlord himself only ; but the statute 3 & 4 Will. IV. e. 42, ss. 37, 38, has extended the power of distress under like circumstances to the executors and administrators in the event of his death (g) . By the Law of Distress Amend- ment Act, 1888 {//), s. 4, the wearing apparel, bedding, and tenants' tools up to the value of 5/. are absolutely protected from distress except where (1) the lease, term, or interest of the tenant has exjji'rcd. (2) Where possession of the premises in respect of which the rent is claimed has been demanded. (3) Where the distress is made not earlier than seven days after such demand. It is difficult to understand why the word " expired " should have been used in this section instead of the words " ended or deter- mined" used in the Act of 8 Anne, c. 14. It does not appropriately refer to the determination of a tenancy from year to year by notice to quit. The object of the provision seems to be an inducement to the tenant to give ujd posses- sion on demand. If he does not do so, the landlord has a more extended power of distress. (c) Waiver of It is a recoguized rule that if a landlord after the breach forfeiture. (e) Doe d. David v. JVil- ((/) Biillen, 122; see a7ife, Hams, 7 C. & P. 322. p. 58. (/) Bume v. Eic/iardson, 4 {/>) 51 & 52 Yiet. c. 21. Taunt. 720. WAIVER OF FORFEITURE. 189 of a condition in the lease receives rent which has become Part I. due since the breach, he thereby recognizes the tenancy as Chap. YI. a continuing one, and is not allowed afterwards to take advantage of the condition for re-entry ; but a landlord may receive any rent wliich becomes due hpforc the for- feiture, or up to the day of the forfeiture, or he may bring an action to recover it without waiving the for- feiture (i). But there seems to be a difference in the case of waiver Waiver by by distress ; for, according to some ^\Titers, a distress for •^^***^'^^^^- rent due even before the forfeiture, with notice of it, amounts to a waiA-er (/.•) ; unless the statute 8 Anne, c. 14, applies to the case, for this statute has been thought not to apply to cases of forfeiture (/), so that a distress is, even now, an acknowledgment that the tenancy has not up to the time of distraining been determined by forfeiture [m). But if the landlord sue in ejectment for the forfeitm-e, he unequivocally declares his election to determine the lease ; and a subsequent distress, whether it is justifiable under that statute, or is a mere trespass, is no waiver {»), although the ejectment is du-ected against the claim of a third per- son, who comes in and defends in lieu of the occupier, and the occupier is aware of that cu'cimistance, and is never turned out of possession (o) . So, also, where the landlord accepts, or distrains for rent, becoming due after the forfeiture, it is a waiver ( p) . {i) Sm. L. & T. 3rd ed. 151. 1 B. & Ad. 436. (A-) Sm. L. &T. 3rded. 153 ; (?i) Grimicood v. Moss, Dumpor^s case, Sm. L. Cas. supra ; Tolman v. Portherrij, 8th ed. 61 ; Ward v. Day, 5 L. E. 7 Q. B. 344 ; Bailey v. B. & S. 359 ; Doe d. Floioer, Mason, 2 Irish Com. Law V. Pech, 1 B. & Ad. 436. But Eep. 582 ; Sm. L. & T. 3rd see Cotesicorth v. Spokes, 10 ed. 152. C. B. N. S. 103 ; Eedman «& (o) Bridyes v. Smyth, 5 Lyon, L. & T. 2nd ed. 205. Bing. 410. (1) Doe V. Williams, 7 C. {]}) Walrond v. Haw/cins, &P. 322; Grimivood Y. Moss, L. E 10 C. P. 342; Cofes- L. E. 7 C. P. 360. tcorlh v. Spokes, 10 0. B. N. S. (w) Doe d. Flower v. Peck, 103. 190 PROCEEDINGS IN DISTRESS, Part I. If a landlord distrains for rent due after expiration of Chap. Vl, notice to quit, it is a waiver of tliat notice (q) . But wliere (d) Waiver of he has in any way acted so as to rebut the presumption of no ice o quit. ^^ existing tenancy, as by recovering in ejectment, a sub- sequent distress by the landlord for rent due after the verdict in ejectment does not waive the notice to quit (r). Although if a landlord distrains for rent due after the expiration of a notice to quit, it is a waiver of that notice, yet he may nevertheless distrain : but where a tenant merely holds over after a notice to quit by the landlord, he is not liable to a distress, without some evidence of the renewal of the tenancy (&) . Renewal of old tenancv. Waiver of disclaimer. If there be anything amounting to a renewal of the old tenancy, the distress will be valid; and as this might arise from an implied as well as an express agreement, a wrongfid distress in the first instance acquiesced in by the tenant, might form the ground for a subsequent valid one ; or a voluntary pajanent of rent by the tenant might have the same effect (/). A subsequent distress by the landlord appears to be a waiver of a disclaimer by the tenant of the landlord's title {u). (e) Ejectment. As we have seen, a demand of the precise rent due by the landlord upon the premises, at a convenient time before sunset, was formerly necessary before he could take advan- tage of a condition for re-entry on non-payment of the Common Law rent. But now by the Common Law Procedure Act, aTi85'2. 1852 (15 & 16 Yict. c. 76), s. 210, "if haH-a-year's rent is due, and no sufficient distress is found on the premises," at {q) Zouch d. JVard v. JVil- lingdale, 1 H. Black. 311. (r) Doe di. Holmes Y.Darhy, 8 Taunt. 538. (s) Jenner v. Whitehoitse, Moo. & Eob. 213 ; Alford v. Vichery, Car. & Marsh. 280 ; Bhjth V. Dennett, 13 C. B. 178. {t) Doe V. Batten, Cowp. 243 ; Zouch v. Willingdale, 1 H. Black. 311; Bullen, 123. {u) Doe d. David v. Wil- liams, 7 C. & P. 322. EJECTMENT. 191 the expiration of the period limited by the proviso for re- Part I. entry, the landlord may recover by action of ejectment, Chap. YI. without any formal demand or entry. But all proceed- ings are to cease on pajTiient by the tenant of all arrears and costs, at any time before the trial {x) . We do not intend to enter into this subject in detail, as it is more applicable to the law of landlord and tenant, than to a work treating solely on distress ; but it may not be out of place to state shortly some of the decisions which describe the meaning to be attached to the expression " no sufE- Meaning of cient distress on the demised premises, or any part jj^tres" >>"^^ thereof." And first, we will mention that the " arrears due " must be cf/l the aiTears, and not merely haK-a-year's rent, where more is due {?/) . A strict search must be made upon the demised pre- The premises mises after the last day for sa\dng the forfeiture, and ^^ctly^ before the vrrit is served, to ascertain that there is no suffi- searched, cient distress on any part of them. So where there was a clause of forfeitui'e in a lease in case no sufficient distress should be found on the premises ; it was held that this must be strictly proved, and in case of a distress being made cveri/ part of the demised premises must be searched. In one case a cottage, which was the principal part, was not entered (s). And the search must not be restricted to the ground floor, but must extend throughout the premises {a) . Where there was a proviso in a lease allomng the landlord to re-enter if half-a-year's rent was in arrear for fourteen days, and there w^as no sufficient distress on the premises, and half-a-year's rent fell into {x) Sect. 212. An under- (;:) Jiees d. Poicelly. King, tenant has the same privilege; 2 Brod. & B. 514. Doe d. IVyatt v. Byron^ 1 C. {a) Price v. Wortcood, 4 B. 623. H. & N. 512 ; see also Doe d. (y) Cross V. Jordan, 8 Ex. Forster v. Wandlass, 7 T. E. 149, overruling i)oe d. Poet-e^^ 111', Doe d. Haverson v. V. Roe, 9 Dowl. 548. Franks, 2 C. & K. 678. 192 PROCEEDINGS IN DISTRESS. Part I. arrear on the 2otli of Mareli, and it was proved tliat there Chap. VI. -^^as no sufficient distress on the premises some day in May ; it was held, that as the plaintiff gave in evidence that there was no sufficient distress some time in May (which was after the rent had fallen in arrear for more than foiuieen daj^s) , there was pn'ind facie evidence, at least, to call upon the defendant to show that there was a sufficient distress within the terms of the proviso {h). A distress is not to be "found" on the demised joremises where it cannot he got at by reason of the tenant having locked the outer doors, &c. (c) ; nor unless the goods are so visibly there that a broker going to distrain would, using reasonable diligence, find them, so as to be able to distrain them {d). III. (a) Where gy agreement the tenant may give the landlord a the distress "^ ° ^. . ,t"^^^„, may be made, power to distraiu upon other lands oi the tenant than those out of which the rent issues, and such an agreement will bind both the tenant and his assigns. Thus where, by a clause in a lease of coal, it was provided that the landlord might distrain not only upon the mine or land demised, but also upon any other lands in which there shoidd be any pits, through which the coal demised shoidd be in course of working by the lessees, their executors or assigns ; it was held, that whether this power was or Avas not a valid power of distress against strangers, the plaintiffs, who took as assignees with notice, were bound by it (e) . But, independently of contract, it is a general rule that a distress can only be made of goods found upon some part of the land out of which the rent issues, and not elsewhere (/). (5) Doe di. Smelt y. Fuchau, FrnnJcs, 2 C. & K. 678; see 15 East, 286; see also Wheeler AVoodf. L. & T. 12th ed. 296. V. Steveyison, 6 H. & N. 155. {e) Daniel \. Stej)?iei/, L. R. (c) Doe d. Chippingdale v. 9 Ex. 185. Dyson, 1 Moo. & M. 77 ; Doe (/) Co. Litt. 161 a ; Gilb. d. C'oa: V. i?oe, 5 D. & L. 272 ; on Dist. 40; Btdlen, 124; Hammond v. Mather, 3 F. & Com. Dig. Distress (A. 3), E. 151. (B. 1); Sm. L. & T. 3rd ed. (f/) Doe d. Haverson v. 223. WHERE DLSTKESS CAN J5E MADE. 193 This ancieut rule of the common law was enforced by Part I. the statute of MarlLridg-e {(j), wliicli enacts, that "it shall Chap. VI. he lawful for no man from henceforth for any manner of statute of cause to take distresses out of his fee, nor in the King's ^arlbndge. highway, nor in the common street, but only to the King or his officers having special authority to do the same." For this reason if two pieces of land are let by two separate demises, although both be contained in one deed, a joint distress cannot be made for them, as that would be to make the rent of one issue out of the other (//). And where a single rent issues out of land in the occu- Where single pation of several tenants, a distress may be made for the o£'\hriam3'^ whole amount on the land of any one of them (/). And where it was stated in a special verdict that by an indentui'e the exclusive use of the land of the liiver Thames opposite to and in front of a wharf between high and low water-mark as Avell when covered with water as dry, for the accommodation of the tenants of the wharf, was demised as appurtenant to the wharf, hut that the land itself between hujh and low water-mark was not demised ; it was held, that the meaning of this finding either was, that the land was demised as appm-tenant to the wharf, and then it would be a finding that one piece of ground was appurtenant to another, which in law could not be, or that the mere use of the land passed, and that was a mere privilege or easement out of which rent could not issue ; and consequently, that the lessor could not distrain for rent in arrear barges lying in the space between high and low water-mark and attached to the wharf by roj)es (/r). But where a tenant rented a stable, and was in the habit of keeping his cart on a part of the road adjoining the stable, {g) 62 Hen. 3, e. 15. (0 1 Eoll. Abr. 671 ; Bul- (Ji) Rogers v. Birhnire, 2 leu, 125; IVoodcock y. Titter- Stra. 1040; Eep. temp. Hard. ton, 12 W. E. 685, Q. B. 245. (-^0 Buszard v. Cajiel^ 8 B. & C. 144. o. o 194 PEOCEEDINGS IN DISTEESS. Part I. wlilch had been paved for that purpose by his landlord Chap. YI. (the road not being a public thoroughfare, but used ' principally by foot-passengers) ; it was held, that the paA^ed part of the road was to be considered part of the demised premises, and the distress was legal (/). The distress may be made upon any part of the land, as the entire rent issues out of the whole and every part {ut). And, as we have before seen, since the statute 8 Anne, c. 14, it has been held, that where a tenant of a farm holds over part of it after the expiration of a term pursuant to some clause in the lease, or the custom of the country, a distress may be made on that part for all the arrears within six months after the expiration of the tenancy {n). And where a definite part of a room is demised for the " stand- ings" of machinery, the payments for such standings may be distrained for (o) . So, also, in the case of a rent-charge, if a rent be granted out of one manor with a clause giving a power of distress in another, a distress may be made upon the latter Q;) ; or where lands lying in different counties are held under one demise at one entii^e rent, a distress may be taken in either county for the whole rent in arrear; but where the counties do not adjoin, a distress cannot be chased out of one county into the other (q). Distress on A distress is expressly forbidden to be taken on the ig way. highway, or in the common street, which are not only no part of the land out of which the rent issues, but are (1) GilUnc/ham v. Gwyer^ (o) Selhy v. Greaves, L. E. 16 L. T. N. S. 640. 3 C. P. 594 ; see Hancock v. (m) Com. Dig. Distress (A.) Austin, 14 C. B. N. S. 634; 3; BuUen, 125. Edmondson v. Nuttall, 17 C. {n) Nuttall v. Stauntoti, 4 B. N. S. 280 ; and see ante, B. & C. 51 ; Beavan v. Dela- pp. 5, 35. hey, 1 H. Black. 5 ; Lewis v. (p) Bro. Abr. Charge, pi. Harris, ibid. 7, n.; Knight y. 17; Bullen, 125. Bennett, S Bmg. 861; Hvillen, (q) Walter v. Rtimhall, 1 125, 120; and see ante, pp. Lord Ray m. 55. 53, 186. WHERE DLSTliESS CAN liE .MADE. 195 also privileged for the convenience of passengers, and the Part I, encouragement of commerce (>•). Chap. VI. Ihii wliere a farm and premises, let for a term at a rent, was described in the lease as adjoining the turnpike-road, and the landlord distrained on the tenant's goods, which were packed on a waggon standing in the middle of the highway next to the demised premises ; it was held, that the presumption was that the right to the soil of a moiety of the highway was vested in the tenant, that the waggon was on the demised premises, and that the distress was legal (.v). An exception to the above rules occurs (as we have seen) Crown, in tlie case of the Cro"vvn, which by vii'tue of its prerogative is entitled to distrain not only on the land out of which tlie rent issues, but also on all the lands of its tenants, and in some cases even on those in the possession of an under- tenant. It can also distrain upon the highway, and in some eases this privilege is extended to its grantees (;*). There are also tliree other exceptions to the above rules, which are as follows : — • By the statute 11 Geo. II. c. 19, s. 8, "Landlords are Cattle on enabled to take as a distress for rent any cattle or stock 11^0^2 belonging to their tenants depasturing upon any common, c. 19, s. 8. appendant or appurtenant, or in any way belonging to the premises demised." This enactment does not extend to a distress for a rent- charge {11). If the landlord, or his agent, come to distrain cattle Cattle driven which he sees upon the land, and the tenant, or any other ^gtress^*^^ person, drives the cattle off the land to prevent the distress, (r) 52 Hen. 3, e. 15 ; Co. (0 2 Inst. 131 ; 52 Hen. 3, Litt. 160 b; Gilb. on Dist. c. 15; Bullen, 76, 126. As 51 ; Bullen, 125 ; AVooclf all's to distresses for gale-rents of L. & T. lOtli ed. 411. quarriesintheForest of Dean, (s) Hodges v. Lawrence, 18 see 59 Greo. 3, c. 86, s. 7. J. P. 347. (?0 Bullen, 126. o2 196 PEOCEEDINGS IN DISTRESS. Part I. the landlord or his agent may then follow and distrain Chap. YI. them even on the highway. In this ease the cattle are siq^posed by a fiction of law to be still on the land. But if he have no view of the cattle whilst on the land, although the tenant drive them off purposely to prevent a distress, or if the cattle themselves after the view go out of the fee, or if the tenant, or any other person, after the view remove them for any other pui'pose than that of prevent- ing a distress ; in these cases the landlord or his agent cannot distrain them {x). (b)rrauclu- In order to prevent the clandestine removal of goods en remova . ^g demised premises by tenants to avoid a distress for 8 Anne, c. 14, rent, the statute 8 Anne, c. 14, s. 2, authorized landlords ^' ' to follow and distrain them within five days after such removal {//) . This was afterwards extended in point of time by the 11 Geo. 2, statute 11 Greo. II. c. 19, which provides as follows : — ^' ' By sect. 1, "In case any tenant or tenants, lessee or lessees, for life or lives, term of years, at will, sufferance, or otherwise, of any messuages, lands, tenements or here- ditaments, upon the demise or holding whereof any rent is, or shall be reserved, due, or made payable, shall fraudu- lently or clandestinely convey away, or carry off or fi"om such premises, his, her, or their goods or chattels, to prevent the landlord or lessor, landlords or lessors, from distraining the same for arrears of rent so reserved, due, or made pay- able, it shall and may be la^\^ul, to and for every land- lord or lessor, landlords or lessors, &c., or any person or persons by him, her, or them, for that purpose lawfully empowered, within the space of thirty days next ensuing such conveying away or carrying off such goods or chattels as aforesaid, to take and seize such goods and chattels, (z) Co. Litt. 161 a; 2 Inst. 411. 132; Clement v. Milner, 3 (y) This section has been Esp. 95; Bullen, 125, 126; repealed bv the Statute Law Sm. L. & T. 3rd ed. 234, 235 ; Eevision Act, 1867 (30 & 31 Woodfall's L. & T. 10th ed. Vict. c. 59). FRAUDULENT REMOVAL. 197 ■wherever tlie same shall be foiind, as a distress for the said Part I. arrears of rent ; and the same to sell, or otherwise dispose Chap. YL of, in such manner as if the said goods and chattels had actually been distrained by such lessor or landlord, lessors or landlords, in and u^ion such premises, for such arrears of rent ; any law, custom, or usage to the contrary in any- A\dse notwithstanding." By sect. 2, it is provided that " no landlord or lessor, or other person entitled to such arrears of rent, shall take or seize any such goods or chattels as a distress for the same, which shall be sold bond fide, and for a valuable consideration before such seizure made, to any person or persons not privy to such fraud as aforesaid." And by sect. 7, it is provided that " where any goods or chattels fraudulently or clandestinely conveyed, or cari'ied away by any tenant or tenants, lessee or lessees, his, her, or tlieir servant or servants, agent or agents, or other person or persons aiding or assisting therein, shall be put, placed, or kept in any house, barn, stable, outhouse, yard, close, or place locked up, fastened, or otherwise seciu'ed, so as to prevent such goods or chattels from being taken and seized as a distress for arrears of rent ; it shall and may be lawful for the landlord or landlords, lessor or lessors, his, her, or their steward, bailiff, receiver, or other person or persons empowered to take, and seize, as a distress for rent, such goods and chattels (first calling to his, her, or their assistance the constable, headborough borsholder, or other peace officer of the hundred, borough, parish, district, or place where the same shall be suspected to be concealed, who are hereby required to aid and assist therein ; and in case of a dwelling-house, oath being also first made before some justice of the peace of a reasonable ground to suspect that such goods or chattels are therein) in the daytime to break open and enter such house, barn, stable, outhouse, yard, close, and place, and to take and seize such goods and chattels for the said arrears of rent, as he, she, or they might have done by virtue of this or any 198 PROCEEDINGS IN DISTRESS. Part I. former Act, if sucli goods and chattels had been put in Chap. YI. any open field or place." We will now consider what cases are within these sections. Where a tenant held under an agreement, with a stipu- lation that it was only to o^^erate until a lease should he made, hut until such lease was made the rent, &c., should be paid, and the several rights and remedies enforced, as if it had been executed; it was held that this agreement created a tenancy at will at a fixed rent, for which the landlord had a right to distrain and to seize the tenant's goods (which had been fraudulently removed) under the first section of this statute (;:). Where the removal has been after the landlord has conveyed aAvay his reversion, he cannot seize under this statute (a) . The removal must have taken place after the rent became due {h). " It is the place, not the time of a distress, to which the statute means to apply the remedy" {c). But where by a demise rent was reserved due quarterly, and on one of the quarter days, and whilst the quarter's rent was unpaid, the tenant fraudulently removed his goods froin the premises ; it was held that the statute As to the removal. (z) Anderso7i v. Midland Railway Compamj, 3 El. & El. 614. (ft) Ashnore v. Hardy, 7 C. & P. 501; riiick V. Digges, 2 Dow & Clark, 180 ; see also Angell\. Harrison, 17 L. J. Q. 13. 25. ib) Waison v. Main, 3 Esp. 15. (c) Rand v. Vaughan, 1 Bing. N. C. 767, per Tindal, C. J. ; Johi V. Jenkins, 1 Cromp. & M. 227 ; Northfeld V. Nig/itingale, 1 L. J. K. B. 219. But see Furneaux v. Fotherhy, 4 Camp. 135, where Lord Eilenborougli doubted whether a landlord can follow and distrain upon goods fraudulently removed from the premises the night befor(3 the rent became due for the purpose of avoiding a dis- tress. It is submitted he cannot. Bullen, 127 ; and see Waits v. Tliomas, 1 Jurist, 719. FEAUDULENT REMOVAL. 199 enabled the landlord to distrain the goods within thirty Part T. days after their removal : Campbell, C. J., observing, Chap. VI. " that the statute only requires that the tenant shall fraudidently remove his goods to prevent his landlord dis- training the same for arrears of rent 'reserved, due, or made payable ' upon a demise. It does not say that the rent shall be in arrear at the time of the removal " (r^). The fact of a removal being clandestine is of importance chiefly as evidencing fraud ; and the statute may now be said to apply to aU cases where a landlord, by the conduct of his tenant in fraudulently removing goods from the premises, is turned over to his barren right of bringing an action for its recovery (e). Thus, where a tenant openly, and in the face of day, and with notice to his landlord, removed his goods without lea-ving sufficient on the pre- mises to satisfy the rent then due, and the landlord followed and distrained the goods ; it M'as held, that although the removal might not be chnukstine, yet if it was fraudulent, the landlord was justified under the statute {/). And the question of what is fraudulent is for the jury to decide, although the tenant admits at the trial that the goods were removed to prevent a distress [g) . The mere removal Mere removal of goods is not of itself fraudulent as against the landlord ; ^of of itself to justify him in following them it must be shown that fraudulent, the goods were removed with a view to elude the distress, and also that sufficient was not left upon the premises (//) ; but it is not necessary to show in proof of concealment of ((/) Dibble V. Bowater, 2 {/) Ojypermaii v. Smith, 4 E. & B. 564, distinguishing D. & E. 33 ; Bach v. Meats, Rand V. J^aii(/han, siip7-a. 5 M. & 8. 200. Rent payable quarterly is {ff) JohnY.Je7ikins,lCTom-p. due on the morning of the day & M. 227 ; Incop v. Moor- on. which it is reserved or church, 2 F. & F. 501. made payable, although it is {h) Parry v. Duncan, 7 not in arrear until the follow- Bing. 243. But see Gilham ingday. v. Arhcright, 16 L. T. 88; (e) BuUen, 128. Woodfall's L. & T. 10th ed. 422. 200 PROCEEDINGS IN DISTRESS. Part I. cattle, that tliey were ■witlidrawn from siglit ; if they have Chap. VI. Ibeen removed to a neighbour's field, so as to cause difficulty to the landlord in finding them, it is sufficient (/). It is not necessary, in order to exercise the right given by this Act, that the party upon whose lands the goods are seized should himself be privy to the fraud (/.•) ; the statute applies to the goods of the tenant only, and not to those of a stranger or lodger {/). Therefore a plea justif}'- ing the following goods off the premises, and distraining them for rent in arrear, must show that they were the tenant's goods {n/). A clandestine removal must always be pleaded spe- cially (li). In case of But the trustees of a bankrupt lessee are considered as the' lessee!^ ° tenants ; and therefore, where the trustees of a bankrupt, who was lessee of certain pasture land, allowed the tenant's cows to remain on the demised premises, and ordered them to be milked there ; it was held that the trustees thereby became tenants to the landlord, and the cows being removed to avoid a distress, the landlord had a right to follow and distrain them under this statute (o) . When a bond fide creditor of a tenant, knowing the tenant to be in distressed circumstances, and fearing that he would be distrained upon by his landlord, went to the premises for which the rent was in arrear, and with the knowledge and consent of the tenant cli^ove away a num- ber of cattle, not exceeding in value the amount of his (?) Stanley v. Wharton, 9 Camp. 135; Vaughany. Davis, Price, 301. 1 Esp. 257 ; see Jones v. Wil- (A-) Williams v. Roberts, 7 Hams, 1 1 A. & E. 643. Exch. 618. («) Ibid.; see also Spencer {I) Thornton v. Adams, 5 v. Harrison, 2 C. & K. 429 ; M. & S. 38. West v. Nibbs, 4 C. B. 172; (m) Postman v. Harrell, 6 C. Blackey v. Dinsdale, Cowp. & P. 225 ; Fletcher v. Maril- 661. Her, Q K()i.&:'El\.Ab1; Foulyet (o) Welch v. Myers, 4 V. Tarjlor, 5 H. & N. 202 ; Camp. 368. Furneaux v. Fotherby, 4 FKAUDULENT REMOVAl.. 201 demand ; it was held, that this was not a fraudulent Part I. removal within the statute (|;). Chap. YI. Under the Ttli section it has been held that the terms of the enactment must be strictly complied wath, and the presence of a constable is required, and must be stated in a plea of justification where doors or gates are broken open (7). But it is not necessary that the party seizing the goods Assistance fraudulently removed should first call to his assistance an ?!If° ^^^J^^ ^ ^ removing. ordinary police officer ; it is sufficient if he be assisted by a person appointed as special constable for the occa- sion {)•), or that there should be a previous request to open the doors in order to give the right to break in (.s) . By 2 & 3 Vict. 2 & 3 Viet. c. 47, s. G7, it is enacted, that " in the Metro- °-.^^' ^■^'^^ politan Police District any constable may stop and detain, Metropolitan until due inquiry can be made, all carts and carriages which ^?^^°? he shall nnd employed m removing the fm-nitm-e of any house or lodging between the hours of eight in the evening and six of the following morning, or whenever the constable shall have good grounds for believing that such removal is made for the purpose of evading the payment of rent." Where the plaintiff occupied a house as tenant to the defendant, the term of wdiich expired on the 29th of September, and removed his goods from the premises on the 27th, 28th, and 29th of September, and on the 18tli of October the defendant seized the goods off the premises as a distress for rent ; it was held, that the defendant was not entitled to seize the goods (under sect. 1 of this statute), unless he could have seized the same under the statute 8 Anne, c. 14, s. 7, if they had remained on the premises ; and as by the 8 Anne, c. 14, goods can only be seized during the possession of the tenant, the seizure was wrongful (/). (^j) Bach v. Meats, 5 M. & (r) Cartwright v. Smith, 1 S. 200 ; Bullen, 128, note 9. Moo. & Bob. 284. [q) Rich V. Wooley, 7 Bing. («) Williams v. Roberts, 7 651 : Foss V. Racine, 4 M. & Exch. 618. W. 419. (0 Gray v. Stait, L. R. 11 Q. B. D. 668. 202 I'KOC'EEDINGS IN DISTRESS. Part I. Chap. YI. Treble damaares. (o) Remedies in case of fraudulent removal. 2, 3. 11 Geo. c. 19, s. Forfeiture of double value. Where goods fraudulently removed and distrained on the premises of a third i^arty are rescued by him, it may be a question whether an action for treble damages under the statute 2 Will. & Mary, sess. 1, c. 5, s. 4, for rescuing a distress will lie against him (n) . Carrying away f urnitiu"e to avoid a distress for rent is an illegal act, and if the offender commits homicide in doing so, he may be guilty of murder (r) . A landlord, apprehending that there would be an attempt to remove a steam engine upon which he had distrained, cautioned his bailiff, and suggested that he should have two men to watch — one by night and one by day. The bailiff stipulated that he should not be liable if the distress was clandestinely removed, but he emploj'ed a man only to watch by day. The goods were removed in the man's absence, and the landlord recovered damages from the bailiff. Coleridge, C. J., holding that the bailiff was bound to use reasonable care, and to have a watch night and day, unless the goods were clandestinely removed so as to bring it within the exception of the agreement ; but lie did not think that this was so, there being no evi- dence to show that the removal was even by night {w). With regard to the means of prevention provided by the legislatui'e in order to deter tenants from fraudulently conveying away their goods and chattels, and others from wilfully aiding and assisting them or concealing the goods, it is enacted by the 11 Gfeo. II. c. 19, s. 3, that "if a tenant or lessee shall fraudulently remove and convey away his or her goods or chattels as aforesaid ; or if anij person or jyersoxs Hhall icU fully and knoidnghj aid or assist any such tenant or lessee in any such fraudulent conveying away, or carrying off of any part of his or her goods or chattels, or in concealing the same ; all and every person, and persons so offending, shall forfeit and pay to the landlord or landlords, lessor or lessors, from whose estate such goods and chattels were fraudulently carried off as aforesaid, double the value of the goods by him, her, or them respectively carried off or concealed as aforesaid ; to be recovered by action of debt"(.r). And by sect. 4 it is provided, that " in case such goods {u) Harris v. Thirkell, 20 L. T. 98; post, p. 31G. (r) Rex\. Hodgson, 1 Leach, C. C. 6 ; 1 East, P. 0. 258. (»•) White v. Heyicood, 5 T. L. E. 115. (x) See County Court Rules, 1889, 0. IV. r. 1. REMEDIES FOR FRAUDULENT REMOVAL. 203 do not exceed the value of 50/., it shall and may be laT\^ul Part I. for the landlord or landlords fi'om whose estate such goods Chap. VI. or chattels are removed, his, her, or their bailiff, servant, or agent, in his, her, or their behalf, to exhibit a complaint ^^gre o-oodT' in writing against such offender or offenders, before two or worth fess more justices of the j^eace of the same county, riding than ooi. may or division of such county, residing near the place whence ^e^rccovered such goods and chattels were removed, or near the place justices. where the same were found, not being interested in the lands or tenements whence such goods were removed ; who may summon the parties concerned, examine the fact, and all proper witnesses upon oath, or if any such witness be one of the people called Quakers, upon affii'mation required by law ; and in a summary way determine whether such person or persons be guilty of the offence with which he or they are charged ; and to inquire in like manner of the value of the goods and chattels by him, her, or them respectively so fraudulently carried off or concealed as aforesaid; and kjwu fidl 2)>'oof of the offence, hij order under their hands and seals, the said justices of the peace may and shall adjudge the offender or offenders to pay double the value of the said goods and chattels to such landlord or landlords, his, her, or their bailiff, servant, or agent, at such time as the said justices shall appoint ; and in case the offender or offenders ha^dng notice of such order shall refuse or neglect so to do, may and shall, by warrant under their hands and seals, levy the same by distress and sale of the goods and chattels of the offender or offenders ; and for want of such distress may commit the offender or offenders to the House of Correction, there to be kept to hard labour without bail or mainprize for the space of six months, unless the moneys so ordered to be paid as aforesaid shall be sooner satisfied." And by sect. 5, "It shall and may be lawful for any AppeaL person, who thinks himself aggrieved by such order of the said two justices, to appeal to the justices of the peace at their next general or quarter sessions to be held for the same county, riding or division of such county, who may and shall hear and determine such appeal, and give such costs to either party as they shall think reasonable, whose determination therein shall be final." The third section of tins statute is considered to be so Decisions on 204 PROCEEDINGS IN DISTRESS. Part I. fur penal, that in an action against a thii'cl party for assist- Onap. Vi. jjjg ^Y^^Q tenant in sueli fraudulent removal, it is necessary the above to bring the case by strict proof within the words of the sections. g^.^^ section ; and, therefore, it is incumbent on the land- lord not only to prove that the defendant assisted the tenant in such fraudulent removal, but also that he was privy to the fraudulent intent of the tenant (y). But the creditor of a tenant may, with the assent of his debtor, take possession of the goods of the latter, and remove them from the premises for the purpose of satisfying a bond fide debt, without incrn'ring the penalty inflicted by the third section of the statute, although the creditor takes possession knowing the tenant to be in distressed circum- stances, and under an apprehension that the landlord will distrain {z). In an action on this section against a tenant for fraudu- lently removing his goods from off the premises to avoid a distress, it is not necessary to show an actual participation in the removal, if it be proved to be with his privity {a); and it seems that it is immaterial whether the removal took place by night, or with any particular concealment. In such an action the acts and orders of the tenant are admissible evidence of his own fraud, and of knowledge on the part of the defendant, if by other evidence he is proved to have contributed to the facility of it ; and cir- cumstances of suspicion may be laid before the jury to prove such a fraudulent co-operation as the legislatm^e contemplated. In order to support such an action it is not necessary to prove that a distress was in progress, or about to be put in execution, or even contemplated ; it is enough if the rent be shown to be in arrear, and that the goods have been removed afterwards [Ji) . A colourable possession (?/) Brooke v. Noakcs, 8 B. P. 121. & C. 537. (b) Stanley v. Wharton, 9 (z) Bach V. Meats, 5 M. & Price, 301; 10 Price, 138; S. 200. Woodgate v. KnatchhuU, 2 T. (rt) Lister V. Broivn, 1 C. & P. 154 ; Bullen, 215. REMEDIES FOR FRAUDULENT REMOVAL. 205 by a servant of the tenant, will not deprive the landlord Part I. of his remedy on the statute (c) . unap. VI. The fourth section of the statute giving the summary remedy before two magistrates, provided the value of the goods is not above 50/., does not take away the jurisdiction of the Superior Courts in cases where the goods are of less than that value (c/). And the fact that the landlord in the first instance made his complaint before a magistrate will not preclude him from afterwards maintaining an action ; for the remedy given by that section is cumula- Hemedy is tive, and therefore the landlord may elect at his option cumulative, which com'se may be most convenient to himself (<'-al entry. able staple, and the owner and other persons usually opened the door by pulling out the staple ; it was held that a distress made upon goods in the stable, after an entry in this manner, was legal (x) . But where a man came to the stable of his tenant to make a distress, and finding that the door was shut with a bar put in his hand through a hole, took asvay the bar, and opened the door ; it was held that this was illegal, the reason being, that that was not the ordinary method of obtaining admission to the premises {//). So, also, an entry into a house by opening a "window which is fastened with an ordinary hasp (z), or through a window which is shut, but not fastened, is illegal ((?). Therefore, where a broker went with a warrant of dis- tress for rent to the demised premises, the front door of which he found fastened, and in the com*se of the day a man in the employ of the landlord was allowed by the tenant to enter by the front door in order to get access to the area for the pm-pose of removing and repairing a grating over it, which was in a dangerous state, and whilst the repau's w^ere going on the tenant left the house, having first fastened the front and area doors, and on the workman finding himself unable to get out after refixing the grating, (s) Brown V. Glcmi, 16 (y) Fitzherbert, Abr. tit. Q. 13. 254. Distress, pi. 21. {t) Co. Litt. 161 a. (z) Hancock v. Austin. 14 (m) 9 Vin. Abr. 128 ; Dis- C. B. N. S. 634. tress, E. 2, pi. 6. (a) Nash v. Lucas, L. E. 2 [x) Ryan v. Shilcoc/c, 7 Q. B. 590. Exch. 72. 220 PROCEEDINGS IN DISTRESS. Part I. the broker suggested to liim to try the window which Chap. VI. opened into the area and was closed at the time, which window being unfastened the man pulled the sash down, entered the house, and unfastened the front door from the inside, on which the broker entered and distrained ; it was held that this must be taken as one transaction, and that as the entry was by opening the window, the distress was unlawful, the judges doubting whether, if the door had been unfastened and opened by an independent third per- son, the entry by the broker would have been lawful. In this case, Cockburn, C. J., says : " The old authorities do not go so far as the modern. The later authorities say you may open a door which is only fastened by a latch. That, I think, was going a very long way. In Chief Baron Grilbert's time it would appear that a landlord could not open an outer door for the purpose of distraining, if it were shut [b). . . . The Court of Exchequer have held that he may open a door which was closed but not fastened (c) ; and if a man leaves his door unfastened there may be an implied licence to any one who has business to enter the premises. But that must stand on its own grounds ; the principle will not apply to a closed, but unfastened, window. Again, it has been said that you may go in at an open window to make a distress {d). But it is nowhere said that you may open a window for the purpose. . . . There- fore, the authorities are limited in application either to the case where the door is shut, but can be opened without violence, or where the window is open, and can be entered without doing any violence. But if the window be shut, you are doing violence if you open it, when neither directly {b) Gilb. Dist. by Impey, 26, b 7. " A man may dis- p. 56. This is also borne out train for the rent of a house in Eolle, Abr. tit. Distress, per ostia et fenestras.'''' where it is said, " A distress {c) Ryan v. Shilcock, 7 for rent may bo taken in a Exch. 72. house, if the door be open, (r/) Nixon v. Freeman^ 5 otherwise not." 46 Edw. 3, H. & N. 652. ENTRY. 221 nor impliedly is the entry made by the licence of the owner Part I. of the house " (c) . Chap. YI. Where the bailiffs enter by forcibly breaking tlirough a Forcible window, the distress is void ab initio ; and the measure of ^ ^' damages is the actual value of the goods taken. The jmy in estimating such damages ought not to make any deduc- tion from such value in respect of the rent due ( /') . As w'e have seen, a distress may be made by an entry through an open window {(j) . And in the very recent case of Crahtrce v. Rohinsoti {//), where a bailiff, employed to make a distress, found a window partly open, but not sufficiently to admit of his entering the house, and by direction of the defendants (the landlord and a broker employed by him), /le raised the window, and so obtained access to the house and opened the front door ; it was held that such an entry was lawful; Manisty, J., observing, "The cases seem to result in this, that to make an entry the latch of a door may be lifted though the door be closed ; but that in the Entry case of a window, entry can only be made if the window is -^^^^(j^o^ ^ to some extent open, and for the pm-pose of entry in such cases the window may be further opened." A broker is justified in climbing over a fence sun-ound- ing a house, and entering by a back door for the purpose of distraining (/). But it is a great question whether this is law now ; for it was decided in a more recent case {k), that wdiere a landlord in making a distress got over a fence or wall of from five to six feet in height at the back of the tenant's house, such being the only means of effecting an entrance, as the fi'ont door was locked, such a mode of entry was illegal. After an entry is once legally effected, and the distress (e) Re-entry to distrain. {e) Nash V. Lucas, svjym. (A) L. E. 15 Q. B. D. 312. {/) Attack V. Bramicell, 3 («) Eldridge v. Stacey^ 15 B. & S. 520. C. B. N. S. 458. (^f) Ttdton V. Darke, 5 H. {k) Scott v. Buckley, 16 & N. 647. L. T. N. S. 573. 222 PROCEEDINGS IN DISTEESS. Part I. made, if it be not abandoned, bnt the distrainor has been Chap. VI. compelled to qnit the honse by the tenant's violence, he may retm-n with competent force, and after a demand of admittance break open even the outer door; for this would only be a reeontinnance of the first taking, and consequently would be lawful (/). But where a person has merely got his arm between the door and the lintel, or by putting a pair of shears between the door and the lintel has prevented its being closed, this is not a "possession" such as will entitle him to break open a door or -udndow for the purpose of gaining admis- sion to the house; and therefore a distress made under such circumstances is illegal ah initio {m). Where a man put in possession under a distress cpiitted possession for a short time for an unavoidable pm^pose, this was held not to be an abandonment ; and therefore, when he came back and found the door of the house closed, he was justified in breaking it open and re-entering {n). Abandon- j^^^-^ where a broker's man, after taking possession of pro- ment. , ... , ... . . perty under a distress, and remammg m possession two days, left the house in a state of excitement bordering on insanity; and the landlord, thinking that the man's leaving had been prociu-ed by the di'ugging of his liquor by the parties in the house (but which was not proved), sis days afterwards broke into the house and took away the goods without any previous demand of admission ; it was held, that he had no right to enter again after so long a delay, and that the owner of the goods might maintain trover for them (o) . But in another case ( j)) , where a broker having been forcibly expelled regained possession by force after an (/) Per Wilmot, J. See («.) Bannister v. Hyde, 2 Espinasse, N. P. 382 ; Bullen, E. & E. 627. 133; Eaglefon v. Gutter idye, (o) Russell v. Rider, GO. 11 M. & W. 465; Puyh v. &P. 416; AVoodfall, L. & T. Griffith, 7 A. & E. 827. 12th ed. 429. (m) Boyd v. Rrofaze, 16 {p) Eldridqe v. Stacey, 15 L. T.N. S. 431. C. B.N. S. 458. RE-ENTRY TO DISTRAIN. 223 interval of three weeks ; it was held that he was justified Part I. in so doing, and that it was a question for the jury Chap. Vl. whether by staying out so long he had abandoned the distress. But where the distrainor jiermits a stranger to take Temporary ,-, 1 p J ;i • • 1 abandonment. away the goods lor a temporary purpose, this is not an abandonment. So where a landlord distrained upon liis tenant (a livery- stable keeper), and took a pony and carnage belonging to one of the tenant's customers, and whilst the broker was in possession, the owner, who was ignorant of the distress, was allowed to take his pony and carriage out as usual, the broker believing that he would bring them back ; it was held that this was not an abandonment of the distress, and that the owner having brought them back they were still subject to a distress (q). Where a bailiff or broker, after having been ejected from a distress, re-enters to distrain, he shoidd confine himself to the same goods (r) . In making a distress for rent, circmnstances may occur When a which rec^uire the presence of a police ofiicer ; but to justify shoul?). This is not con- fined to cattle, but may extend to inanimate things doing damage (such as a locomotive engine) (o) ; and it is not necessary to leave to the jury explicitly the question whether the defendant knew of the uofit state of the pound, for he is bound to know it, and, moreover, he must be taken to have known it [p). If cattle are stolen from a pound overt the distrainor is not liable for the loss, because such a pound is the proper one for the impounding of cattle [q) ; but if cattle are tied in the pound and strangle themselves, or if the distrainor puts a horse into a pound with spikes in it, by which the horse wounds itself, he will be liable ; for any act of his which tends to the injury of the thing distrained is done (J) Per Denman, C. J., in Layton v. Hurry, supra. {m) Machell v. Ellis, 1 C. & K. 682 (decided on 5 «& 6 Will. 4, 0. 59, ss. 4, 19). («) Wilder v. Speer, 8 Ad. & EU. 547; Gilbert on Dis- tress, 62; 2 Inst. 106; Co. Litt. 376 ; Bac. Abr. Distress (D). (o) Amber gate Railway Com- ])any v. Midland Railic ay Com- imny, 2 El. k B. 793; Bl. Com. vol. iii. 249. (^j) Bignell v. Clarke, 5 H. & N. 485. (q) Vasjier v. Edwards, 1 Lord Eaym. 719; Holt, 256; Bac. Abr. Distress (D). IMPOUNDING. 235 at his peril ; but not if they die by tlie act of Grod ; and Part I. in this latter case he may distrain again (r) . Chap. VI. When cattle distrained damage feasant are impounded, Escape from and escape from the pound without the fault of the dis- trainor, his remedy by action for the trespass remains («). Moreover, at common law the distrainor could not, and Working or cannot now, icork or use the distress, whether it be in an (jig^^gg open or a covert pound ; for he has no property in it ; he only holds it as a pledge, and it is an abuse of his power if he does so use it {t) . So where a distrainor works horses or kills sheep that are impounded, the owner may inter- fere and prevent this abuse ; and no action can be main- tained against him for pound breach or rescue (»). An Exception to exception to this rule exists in the case of milch kine, * ^ ^" ^• which may be milked by the distrainor ; because " this is necessary for their preservation, and consequently a benefit to the owner "(.r). A poimd-keeper is bound to receive everything offered to his custody, and is not answerable whether the thing were legally impounded or not (y) ; and an action does not lie against him for merely recei\'ing a distress, though the original taking is tortious, imless he exceeds his duty and assents to the tortious act : for the pound being the custody of the law, if the distress be wrongfully taken the distrainor is answerable, and not the keeper of it. (r) Gilbert, Distress, 65 ; (x) Bac. Abr. tit. Distress Bac. Abr. Distress (D); Smith, (D) (2); Bagshaiv v. Goioard, L. & T. 2nd ed. 234 ; Gates v. Cro. Jac. 148. But see Cham- Baijlexj, 2 Wils. 313. berlaijne's Case, 1 Leon. 220; (s) Williams v. Price, 3 B. Eoll. Abr. 673, 1, 32, 9; Vin. & Ad. 695; Vasper Y.Edwards, Abr. pi. 18; Bullen, 149; supra. Duncomb v. Reeve, Cro. Eliz. (/) But he may make what 783. profit of it he can whilst it {y) Badkin v. Poioell, Cowp. remains in the pound. 478 ; Branding v. Kent, 1 iu) Smith V. Wright, 6 H. T. E. 62. &N. 821. 236 PROCEEDINGS IN DISTRESS. Part I. Chap. YI. Where the distress may be impounded. Statute of Marlbrida-e. 1 & 2 Ph. & Mary, c. 12, 8. 1. Decisions on the statute. ^\1ien cattle are at once impounded, he cannot let them out of such custody without a replevin or the consent of the party (c). Neither can a pound-keeper bring an action if the pound he broken ; it must be brought by the party interested (a) . Formerly at common law a landlord might have im- pounded his distress in what county he pleased ; and he had a right to drive the cattle to any distance. This was a great hardship to the tenant, who was thereby at a loss where to find his beasts, if he wished either to feed or replevy them {b) . The fii'st improvement in the law in this respect was by statute 52 Hen. III. (Statute of Marl- bridge), c. 4, which prohibited the person distraining from driving the distress out of the county. But even this being found to be too great a latitude, the statute 1 & 2 Ph. & Mary, c. 12, was passed, which by sect. 1 enacts, that " no distress of cattle shall be driven out of the hundi'ed, rape, wapentake or lathe where such distress is or shall be taken, except that it be to a pound overt within the same shii-e, not above three miles distant from the place where the said distress is taken ; and that no cattle or other goods distrained or taken by way of distress for any manner of cause at one time, shall be impounded in several places, whereby the owner or owners of such distress shall be constrained to sue several replevies for the delivery of the said distress so taken at one time ; upon pain every person offending contrary to this Act shall forfeit to the party grieved for every such offence an hundred shillings and treble damages " (c). As will be seen from this statute, a distress cannot be (s) Badkin v. PoiccII, supra. (o) Bacl/cin v. Powell, supra; Fitz. N. B. 228; 2 Chitty, pi. 549, 7th ed. ; AVoodfall, L. & T. 10th ed. 427. {h) Gilbert, Disti-ess, 4th ed. by Impey, 62 ; Bullen, 144. ((■•) For exjieuses of im- pounding, soeposl, p. 262. IMPOUNDING. 237 driven out of one county into anotlier, even tliougli it be Part I. to the nearest pound, and within three miles of the place Chap. YI. of the distress. So where lands lying in two adjoining counties were let under one demise at an entire rent, and the landlord distrained cattle in both counties for rent in arrear, he might chase them all into one county ; but if the counties had not adjoined it would have been other- mse (d). Where a distress was made in the hundi-ed of Ojfiey, in Staffordshire, and was afterwards impounded within the city of Lichfield (which was formerly within the hundred, but was afterwards, by letters-patent, made a county of itself), it seems to have been considered as ii'regular within this statute (e). The offence created by this statute for impounding a distress in a wrong place is but a single offence, and is satisfied by one forfeiture, though three or four persons are concerned in doing the act ; for the offence cannot be severed so as to make each offender separately liable to the penalty; the meaning of the statute being that the penalty shall be referred to the offence and not to the person (/). Thus, where tlu-ee persons distrained a flock of sheep, and' severally impounded them in three several pounds, it was held that they should forfeit but one five pounds and one treble damages (g). In an action for di-iving a distress out of a hundred into Where the another county, the action may be brought in either brou^hT.^^ county (A). But this statute, though not repealed, has for the most part ceased to be of any practical importance ; for it (d) Woodcraft v. TJiomj)- (_/) Rex v. Clarhe^ Cowp. son, 3 Lev. 48; Walter v. 612. Rumhall, 1 Lord. Eaym. 53 ; {g) Partridge v. Naylor, Gimhart v. Pclah, 2 Stra. Cro. Eliz. 480 ; Moore, 453. 1272 ; Bulleu, 145 ; Woodfall, {h) Fope v. Davis, 2 Taunt. L. & T. 10th od. 428. 252. It is not within 31 Eliz. (f) Gouldsb. 100; Bullen, c. 5, or 21 Jac. 1, c. 4, s. 2. 145. Fifey. Bousjield, 8 Q. B. 100. 238 PROCEEDINGS IN DISTRESS. Part I, apjoeared so miicli better, both for tlie landlord and tenant, Chap. VI. that the distress should not be taken off the premises at all, but should remain tliere in a situation equally and Alteration by easily accessible to both (/), that by the statute 11 Geo. II. c. 19, s. 10, it was enacted as follows: that "it shall be 19, s. 10. Impounding on the premises. Decisions on this statute. Duties of distrainor. lawful to and for any person or persons lawfully taking any distress for any kind of rent, to impound or otherwise secure the distress so made, of what nature or kind soever it may be, in such place ov on such part of the jiremiscs chargeable with the rent as shall he most fit and con- venient for the impounding and secui'ing of such distress; and to ajopraise, sell, and dispose of the same upon the premises, in like manner, and under the like directions and restraints to all intents and pm^poses as any person taking a distress for rent may now do off the premises by wtue of the statutes 2 Will. & Mary, sess. 1, c. 5, and 4 Greo. II. c. 28, &c. And that it shall be lawful for any joerson or persons whatsoever to come and go to and from such place or part of the said premises, where any distress for rent shall be impounded and secured as aforesaid, in order to view, appraise, and buy, and also in order to caiTy off or remove the same on account of the purchasei' thereof ; and that if any pound breach or rescous shall be made of any goods, or chattels or stock distrained for rent and impounded, or otherwise secm'ed by virtue of this Act, the person or persons aggrieved thereby shall have the like remedy as in cases of pound breach or rescous is given and provided by the said statute." Upon this statute, which is the law now in force with regard to the impounding a distress for rent, it has been held that the landlord ought not to deprive the tenant of the enjojTnent of his Avhole house, or even interfere with it. If the distress be impounded on the premises, the provisions of the statute must be strictly complied with : (0 Smith, L. & T. 3rd ed. 259. IMPOUNDING. 239 the distrainor oug-lit either to put all the goods distrained Part I. in one room, and keep possession of that only, or to Chap. YI. remove such goods out of the house in the absence of any consent to the contrary. But two or thi-ee rooms may be used, if necessary, as may appear most tit and con- venient (/.) . It may be difficult, since the passing of the statute, to say ichat is an impounding. Formerly there was no such What is an difficulty, because it was necessary to remove the goods from off the premises ; but the statute seems plainly to involve the necessity of the party doing some act to denote the impounding or securing ; and the most easy and proper way is to leave a man in possession [1). We may here mention that by the Law of Distress Removal of Amendment Act, 1888, s. 5, the tenant can, by request in pXiic auction writing, oblige the landlord to remove the goods, for the room, pm^poses of sale, to a pubKc auction room, or to some other fit and proper place specified in such request, to be there sold. But if the tenant do this, he must j)ay the expenses of such removal ; and he is liable for any damage that the goods may sustain. An implied assent to the impoimding on the part of the Assent to owner is sufficient [ni), and very slight evidence ^ill sup- port it (//). As where the only e^idence of assent was that the plain- tiff had said, " how much she was obliged to Mr. M., who had acted like a gentleman" (o), or where the tenant called the same day, and thanked the distrainor for the way in which the distress had been made (j;). {k) Woods V. Durrant, 16 able that the assent should be M. & AV. 149. in writing, and in express {I) Tennant v. Field, 8 El. terms. Bullen, 147. & Bl. 336. See the argu- (?«) Washhourny. Black, \\ ment of Sir AV. Follett in East, 40o. Swan v. Earl of Falmouth, 8 (o) Ibid. B. & C. 456, cited therein. {p) Tennant v. Field, 8 El. (w) It is, of course, advis- & 131. 336. 240 PROCEEDINGS IN DISTRESS. Part I. Where a landlord made a distress in a cottage and Chap. VI. locked up the premises altogether, it was held, that if the locking up of the cottage were done to secure the goods, the landlord had a right to do it, as he might impound the goods on the premises and lock them up in order to seciu'e Tenant cannot them (q) ; but it seems that the distrainor cannot lock up exduded7 ^^^® whole of the premises distrained upon, so as to exclude the tenant therefrom, except with the tenant's express consent. Rather than do that he must remove the goods distrained (r). It has been held that an open field is a sufficient pound for cattle (s). Wliat is a sufficient impounding. Again, with regard to the question of what is a sufficient impounding — -where a bailiff went on to a field where the tenant's cattle were, touched one of the beasts on the side, and said he distrained for rent, and took a list of the cattle, but made no change whatever in their situation and position, leaving the gate of the field unlocked as he found it ; and he then gave notice of the distress to the tenant, and said he would sell in five days if the rent were not paid, the notice stating that the cattle were impounded on the premises, but not saying where, and the bailiff re- mained in charge of the cattle for some time, and when he left was succeeded by another person ; it was held that, under these circumstances, the impounding of the cattle was complete and perfect from the time of giving notice to the tenant {f). But where an officer distrained the goods of a lodger, and continued in possession for eight hours, saying that he would remain in possession five days if the money was not paid ; it was held that this was not an impounding, but that it was a question for the jmy whether [q) Cox V. Painter, 7 C. & P. 767. See remarks on this case, BuUen, 147. (r) Smilh v. Ashforth, 29 L. J. Ex. 259. (5) Castleman v. Hicks, 1 C. & M. 266 ; Woodfall, L. & T. 10th ed. 429. (f) Thomas v. Harris, 1 M. & Gr. 695 ; Firth v. Purvis, 5 T. P. 432. IMPOUNDING. 241 he had remained an unreasonable time for the removal of Part I. the goods («). Chap. YI. Horses grazing on the side of a tm-npike-road witli a man in charge of them, they being imder his control, are not liable to be impounded, as " wandering, straying, or lying " about the road under 4 Geo. IV. c. 95, s. 75 {x). As has been seen, at common law all the things distrained were required to be impounded off the premises; and since the statute 1 1 Geo. II. c. 19, s. 10, they may be impounded either off or on at tlie option of the distrainor. This option, though applicable to everything distrainable at common law, is subject to some exceptions, which we have noticed before (y). Thus, by the statute 2 WiU. & Mary, 2 wm. & 1 ^ o 1 i • 1 Mary, sess. 1, sess. 1, c. 0, s. o, persons are empowered to seize and secure c. 5^ g. 3. sheaves, or cocks of com, &c., and to lock up or detain the same in the place where found, in the nature of a distress, imtil replevied, and in default of replevying to sell the same, so that such corn, &c., be not removed by the per- sons distraining, to the damage of the owner thereof, out of the place ichere the scunc shall he found and seized, but be kept there (as impounded) until the same shall be reple\ied, or sold, in default of replevying the same, within the time aforesaid. These objects of a distress, therefore, are incapable of removal, and must be impounded oh the premises (::). Again, by the statute 11 Geo. II. c. 19, s. 8, it is enacted n Geo. 2, that " the landlord may take and seize as a distress for ' ' * ' arrears of rent any cattle or stock of their respective tenant or tenants feeding or depasturing upon any common, appendant or appiu'tenant, or in anyways belonging to all or any part of the premises demised, or holden, and also to take and seize all sorts of com and grass, hops, roots, (?<) Peppercorn v. Hofman, Q/) Ante^ p. 138. 12 L. J. Ex. 270. [z) Per Parke, B., 1 M. & (2) Morris v. Jeffries, L. E. W. 448 ; Bullen, 148. 1 a B. 261. 242 PBOCEEDtNGSi IX DIiSTRESS. p^y^ J fnnts, pulse, or other ppoduct wlmtsoeyer whieli sh a l l be Cliap. TT. growing- on anj part of the estates so demised or holden, as a distre^ for arrears of rent; and the same to cut, gadiex, make, cure, carrr, and laj up, when ripe, in the bams, or other proper place on the premises so demised or holden; and iu ease there shall be no bam or proper place on the premises so demised or holden, then in any other bam, or proper place, vrhieh such lessor or landlord, lessors or landlords, shall hire or otherwise procure for that purpose, and as near as may be to the premises, and in TOUTenient time to appraise, sell, or otherwise dispose : :^^ same, towards satisfaction of the rent for which - - -1 listre^ shall have been taken, and of the charges of 5-1 _ iistre^ appraisement, and sale, in the same manner as other goods and chattels may be seized, distrained, and di?; T - : nd the appraisement thereof to be taken "^-1 - :. ^a.ixiered, cured, and made, and not before." "^ - A-„ . -i-Tvfore, the things made disfcrainable by this -: : 1 : be impounded off the premises, except in jf 7 - ■ - : : _ :e being a proper place upon the premises :^-.--^ _; ;_.- ^^jrr with r^aid to the impounding of a listress ; and we haTe now to turn our attention to what becomes of it after it has been impounded- As we have stated before, at common law a distress wbs considered to be a mere pledge, the landlord not being in anyway able to dispose of it. He had merely the right to detain it unto, his rent was paid. This, as may be imagined, was unjust both to the landlord and the tenant ; for the land- lord did not always procure the satisfaction of his rent on ibe one hand ; whilst, on the other, the tenant was often deprired of his means of satisfying it. It was, therefore, thought neee^ary to alter this grieiFanee ; and accordingly the statute 2 "WilL & Mary, sess. 1, c. 5, s. 2, was passed, ■which enacted that '* where any goods or chattels shall be :Tr:::. t 'h) Per Parke, B., 1 M. & W. 449 : BuUen, 148. APPRAIJsOfEXT. 243 distramed for anv rent reserved and due upon any demise. Part I. lease, or eontrad: whatsoever, and the tenant or owner of Cxiaji. \ L the goods so distrained, shall not within five days ie) next Xonc* ai.d after such distress taken, and notice thereof (with the ^^^^ cause of such taking) left at the chief mansion house, or other most notorious place on the premises charged with the rent distrained for, replevy the same, with sufficient security to be given to the sheriff according to law, that then in such ease, after such distress and notice as afore- said, and exjfiration of the said five days, the person dis- training shall and may, with the sheriff or under-sheriff of the c-ounty, or with the constable of the hundred, parish, or place where such distress shall be taken (who are hereby required to be aiding and assisting thereiQ), cause the goods and chattels so distrained to he appraised Af^nMe- by two sworn appraisers (whom such sheriff, under-sheriff, or constable, are hereby empowered to swear) t -e the same truly, according to the best of their ni- ^ . i- _- ings ; and after such appraisement shall and may lawfully sell the goods and chattels so distrained for the best price that can be gotten for the same towards satisfaction of the rent for which the said goods and chattels shall be dis- trained, and of the charges of such d^tress, appraisement, and sale, leaving the overplus (if any) in tbe hands of the said sheriff, under-sheriff, or constable, for the owner's use." Before discussing this statnte it is necessary for us to state that the statute 35 & 36 Tict c. 92, s. 13 (•) ; for all these persons are not only interested in the business, but are expressly excluded by the terms of the statute, which says that " he, with the sheriff, &c., shall cause the goods to be appraised by two sworn ap- j)raisers" (-s). If a j)erson who has acted as the agent of a landlord in the matter of a distress is one of the ap- praisers, a sale of the goods distrained is iiTcgular; and in an action for such sale the measm-e of damages is the full value of the goods to the tenant at the time of the distress, less the amount due for rent (/). And a landlord cannot sell the goods to himself. So where goods belong- ing to A. were assigned by a bill of sale to the defendant, and were afterwards seized by A.'s landlord for arrears of rent, and the goods were aj)praised, but not sold, the land- lord taking them at the appraised value in discharge of his rent, and gi^^ing them to the plaintiff (A.'s daughter), and the defendant afterwards seized them under his bill of sale ; it was held that the right of property in the goods re- mained in the tenant till sale, and the taking of such goods by the landlord was not equivalent to a sale ; and it was also held that the landlord accj^uii'ed no property in {p) Roden v. Ei/(o7i, 6 C. B. sell, Bull. N. P. 81. 427 ; Clarke v. Ilol/ord, 2 C. {?•) Lyon v. Weldon, 2 Bing. & K. 540 ; Child v. Chamber- 334. lain, 5 B. & Ad. 1049. (,y) Bulleu, 157. {q) IFestivood v. Cuictie, 1 (/) Kocke v. Ililh, 3 Times Stark. 172; Andreics v. Rus- Law Eep. 298. 248 PROCEEDINGS IN DISTRESS. Part I. them, and consequently could transmit none to the plain- Chap. YI. tiff(^0- The person distrained uj)on may, if he choose, dispense with the ahove-mentioned formalities which are required by law. So that in a case where the tenant, in order to save expense, requested that appraisers might not he called in, and in consequence the broker, who made the seizure, himself valued the goods ; it was held that he could not afterwards complain of that as an iiTegularity which had been done at his owti instance (,r). View and After the appraisers have been appointed they must proceed to view and value the goods ; and they usually WTite their appraisement uj)on the inventor}', w^iieh should be signed by them {y) . Where goods were distrained, and at the end of five days appraised, but not sold, the act of appraisement did not take away the tenant's right to replevy them [z] . After a sale the pui'chaser has a right to take the goods and retain them, but until a sale it is competent to the tenant to replevy them ia) . In an action for selling goods distrained for rent without appraisement, the measure of damages is the real value of the goods sold minus the rent due [b), U) Sale. As we have seen, until the goods are duly sold, the property in them remains vested in the tenant or other owner (c) . So if cattle distrained die during the distress, the loss is that of the tenant and not of the landlord {d). (m) King v. England^ 4 B. [a) Per Gibbs, C. J., in & S. 782. Jacob V. King, supra. {x) Bishop V. Bryant, 6 C. (i) Knight v. Egerton, 7 & P. 484. Ex. 407 ; Whitworth v. Maden, (y) Woodfall, L. & T. 12th 2 C. & K. 517. ed. 445. For form of ap- (c) King y. Engkmd, sxipra ; praisement, see App. A. (11). Moore v. Pyrke, 11 East, 52, (z) Jacob V. Kiny, 5 Taunt. 54. 451, {d) Moore v. Pyrke, supra. SALE. 249 The statute 2 Will. & Mary, sess. 1, c. 5, s. 2, is not Part I. compulsory ; the provision by which the landlord " shall Chap. Vl. and may lawfully sell the goods distrained " being permis- sive, and therefore no action lies for his not selling. It has also been held that where goods are sold under a dis- tress, and the proceeds are insufScient to satisfy the rent due, the landlord has a remedy by action or counterclaim for the balance (e). So that if the landlord thinks fit, instead of proceeding to sell the distress, he may forbear to do so, and merely retain it as a pledge, as at common law(/). But it seems that a different construction must be put upon the provisions of sect. 3 of the statute 2 Will. & Mary, and those of sect. 8 of the statute 11 Geo. II. c. 19 ; and, therefore, a distress under these sections of corn and hay and other produce must be sold {(j) ; for as these things were previously exempted from distress at common law on account of their perishable nature, and it was the conferring of the power to sell alone which admitted of their being distrained, it became necessary to make the sale compulsory of things which were declared to be distrainable only in respect of such sale [h). It will be observed that the sale was not to take place Law of Dis- unless the tenant omitted to replevy within five days after ^^^^ j^^^^ the distress ; but this period is now altered by the Law of 1888, s. 6. Distress Amendment Act, 1888 (/), which by sect. 6 enacts that " the period of five days provided in the said Act of William and Mary, chapter 5, wdthin which the tenant or owner of goods and chattels distrained may replevy the (e) Philpott V. Lehain, 35 {h) Bullen, 153. L. T. N. S. 855. [i) 51 & 52 Vict. c. 21, s. 6, {f) Huddw. Ravenor, 2 B. repealing a similar pro\dsion & B. 662; Lear v. Edmonds, under sect. 51 of the Agricul- 1 B. & Aid. 157; LinghamY. tural Holdings (England) Act, Warren, 2 B. & B. 36. 1883 (46 & 47 Vict. c. 61). ((/) Per Parke, B., 1 M. & Per form of request, see App. W. 448 ; Pigrjott v. Birtles, 1 A. (8). M. & W. 441. 250 PEOCEEDINGS IN DISTRESS. Part I. same, shall be extended to a period of not more than fifteen Gnap. \ I. (j(iyg if the tenant or such owner make a request {j) in writ- ing in that behalf to the landlord or other person levying the distress, and also give seeiu'ity for any additional cost that may be occasioned by such extension of time : Pro- vided that the landloi-d or person levying the distress may, at the written rec[uest, or with the written consent, of the tenant or such owner as aforesaid, sell the goods and chattels distrained, or part of them, at any time before the expira- tion of such extended period as aforesaid." Observations Some doubts may arise as to the interpretation of this section. It will be noticed that it does not repeal the pro- visions of the statute of William and Mary with regard to the period of five days ; it only pro\'ides that such a period shall be extended at the tenant's request, no time being mentioned when the request is to be made. If the tenant makes no such request, the conclusion seems to be that the old rule as to five days stands, and the tenant must replevy within that period ; but if the proviso is considered, it will be seen that the landlord may, at the tenant's request, sell " at any time before the expu'ation of such extended period as aforesaid." This seems to imply that, if the tenant had made a request, and fixed a period for selling beyond the five days, the landlord could then, with the tenant's further consent, alter the period fi:xed upon, and sell uithin the five days. Another point arises — \iz., what is the meaning of the words " such extended period as aforesaid ? " Do they refer to the time which the tenant fixes as the extension which he wishes, or to any period " of not more than fifteen days " as mentioned in the section ? The authors submit that the former is the view intended by the legislature. To give an instance : if a tenant writes to liis landlord and asks for the time to be extended to ten days, the landlord cannot sell \vithin those ten days. But (y) See note (e), siqn-a. SALE. 251 if the tenant subsequently requests tlie landlord to alter Part I. this period to six daj's (or even to four days) the landlord Chap. YI. may sell the goods at either of these periods. If the other ~ view be taken as to the meaning of the words " such extended period as aforesaid," the parties will be able to alter their period originally fixed upon of ten days to any time between the ten and the fifteen days mentioned by the section. Inasmuch as the provisions respecting the five days under the statute of William and Mary have not been rej)ealed, but only extended, it is necessary to state the decisions with regard to them. It has been held (under the repealed sect. 51 of the Agricultural Holdings (England) Act, 1883) that the words " other person levying the distress " do not apply to the bailiff, as he cannot be the person to decide whether the goods are to be sold or not. That is a transaction which must take place between the tenant and the person who puts the law in motion, and, by himself or his agent, levies the distress (A-). It was at one time thought that these five days were How the five inclusive of the day of sale (/) ; but it was held subse- ^^X^ ^^^*° ^® quently that the days were to be reckoned exclusively of the day of taking and notice, and also exclusively of the day of sale {»i). The new Act does not specify that the fifteen days must be fifteen clear days, which was no doubt intended. Therefore, where a distress had been taken, and notice thereof given on the Satm-day, the five days expired on the following Thursday, and the goods could not be laA\-fully sold before Friday {>i) . (k) See Coode v. Jo/uis, 17 Queen's Bench it is said that Q,. B. D. 714, 2)ost, p. 260, they are to be reckoned in- per Grove, J. clusivoly of the last day, and (Z) Wallace v. King, 1 H. exclusively of the day of Black. 13. taking, overruling Wallace v. (m) Robinson v. Wadding- A7/;y, fiiipra. ^on, 13 Q.B. 75.3. But in the {n) Ibid. 252 PROCEEDIXGS IN DIS^TRESS. Part I. Where a distress was taken on a Monday or Tuesday it Chap. VI. could not be lawfully sold until the following Monday (o). Where a distress was made on the afternoon of Friday at 2 p.m., and a sale on the morning of the Wednesday following at 11 a.m., it was decided to he wrongful (^j). Should the distrainor choose to sell as well as to impound the goods upon the premises, he was not obliged to remove them immediately on the expiration of the five days, unless he chose to do so ; but he was allowed by law a reasonable time afterwards for appraising and selling them, and it was a question for the jury to say " what was a reasonable time " (q). If, however, he suffered them to remain beyond such reasonable time, or in case they were to be sold off the premises, or were not to be sold at all, but were merely to be retained as a pledge, and were not removed at the end of the five days (unless the tenant's consent to their re- mainiug were obtained), he became a trespasser (;•). And, therefore, where a person entered under a warrant of dis- tress for rent in arrear, and continued in possession of the goods on the premises for fifteen days, during the fom- last of which he was removing the goods, which were after- wards sold under the distress ; it was held that he was liable to an action of trespass for continuing on the premises, and disturbing the plaintiff in the possession of his house after the time allowed by law (s). The landlord could not sell before the expu'ation of the Actual five days ; but in an action for selling the goods before be prfved!'''* the five days had elapsed, the plaintiff could only recover if he had sustained actual damage (/). And although standing corn and growing crops seized (o) Lucas v. Tarleton, 3 H. (;•) Griffin v. Scott^ 2 Lord & N. 116. Eaym. 1424. i^p) Parker v. Tasivell, 6 (s) Winterhourne v. Mor- C. & P. 166. gan, 11 East, 395; Etherton {q) Pitt v. Shew, 4 B. & V. Poppleivell, 1 East, 139. Aid. 208 ; Philpott v, Lehain, (t) Lucas v. Tarhton, 3 H. 35 L. T. N. 8. 855. & N. 116. See also Rogers V. Purler, 18 C. B. 112. SALE. 253 as a distress for rent cannot be sold before tliey are ripe, for Part I, the tenant may tender the rent before they are ripe(«), C;hap. VI. it has been held that where a person seized the plaintiff's growing wheat, and sold it on the premises in a growing state, and a pui-chaser cut and carried it away, and the surplus proceeds, after satisfying the rent, were paid over to the plaintiff, who according to the jury sustained no damage by the transaction ; he was not entitled to recover even nominal damages {x) . Previously to the Act of 1888, it frequently happened that it was to the tenant's advantage that the goods should not be sold as soon as the law permitted ; for by so doing he had a longer time for redeeming them by paying the rent, or the subsequent sale of them might be enhanced by advertisements, &c. ; and in such cases, if they were Consent by- impounded on the premises, it was usual for the tenant to o-oods to give a consent for their remaining there for a longer remain on the DrGnnsGS period in the custody of the distrainor. If such consent were given, it was considered prudent, though not abso- lutely necessary, to have it in writing (//) . If a landlord who had distrained for rent did not sell within the five days by arrangement between himself and the tenant, that was no proof 7;er se of collusion (;:). Where goods were distrained and impounded, and there was a sub-demise to an under-tenant or lodger, and they were intended to be kept there beyond five days, it was held that the object of such consent (/. e., to prevent a trespass) must be borne in mind, and the consent of all persons obtained on whom a trespass would otherwise be committed. After such a consent on the part of the tenant the goods could not be sold before the expiration of the time agreed upon {a) ; but this has now been altered. («) Owen V. Leigh, 3 B. & (y) Bullen, 155. For form A. 470 ; Prondlove v. Twem- of request, see Appendix low, 1 Cr. & M. 326. A. (8). {x) lioyers v. Parke}-, 18 (;:) Harrison v. Barry, 7 C. B. 112 ; distinguishing Price, G90. Owen V. Leigh and Froudlove (a) Bullen, 155, v. Tivemlow, supra. 254 PROCEEDINGiS IN DII^TRESS. Part I. Chap. YI. Search in County Court for replevins. Landlord may not buy. Meaning of " best price. Where a landlord, at the request of the tenant, detained the goods of a lodger upon the premises beyond the proper time of selling, he was held not to be liable to an action at the suit of the lodger if he did not know which were the goods of the lodger and which those of his tenant (b). The landlord could not sell the goods after tender of the rent and costs made at any time within the five days(r). Before any sale takes place, the office of the County Com-t of the district should be searched to ascertain if the goods have been replevied ; and if that is not the case, and the rent and charges are still unpaid at the expiration of the time allowed by law, the goods should be sold for the best price that can be got for them. If the distress is for a less amount than 20/., the persons selling the goods by auction need not have an auctioneer's licence (d). As we have seen before, a landlord cannot sell the goods to himself, or take them at the appraised price {c). When the goods are valued, it is not unusual for the appraisers to buy them at their own valuation (./'). It was formerly held that if sold at the appraised price, the goods were presumed to have been sold at the best price {{/) ; but the ground of this decision was that the law placed reliance upon the fact of the appraisers having been sworn ; and as this rule no longer holds, appraisement now is only prima facie evidence of the value (Zt). The plaintiff may go into evidence to show that the goods were not sold at the best price by being allowed to stand in the rain, and that (b) Fisher V. Ahjar, 2 C. & P. 374. (c) Johnson v. Upham, 2 Ell. & Ell. 250. {(1) 8 & 9 Yict. c. 15, e. 5. (e) King v. England^ 4 B. & S. 782, ante, p. 247. (/) This course, however, should only be adopted when the value of the goods is small. (^) Walter v. Rumball, 1 Lord Eaym. 53 ; and see Efford V. Burgess, 1 Moo. & Eob. 23. (A) Cook V. Corbet t, 24 W. E. 181. Eor form of state- ment of claim for not selling at the best price, see App. A. (20). SALE. 25 they were improperly allotted (?)• In another ease it was Part I. held that the price realised at a sale by auction is prima Chap. YI. facie e\idence of the value of the goods {k). Care must he taken not to sell an}i;]iing which was not actually dis- trained (and of what the distress consisted the inventory is evidence), otherwise the distrainor will render himself liable (/). It is not necessary to observe any particidar order on No order need the sale of goods distrained ; so that though beasts of the ^^^q. plough cannot be la^^dly distrained when there is any other sufficient distress on the premises, yet, if they are once distrained, it is not necessary to postpone their sale to that of the other goods (?»). Where a tenant is under covenant not to carry hay and Kestrictive straw off the premises, it was formerly held that the land- ^o^^nants. lord was entitled to dispose of them subject to such cove- nant («) . But this is not so now ; and such a restriction cannot be legally imposed by the landlord, because other- wise he would not be selling the goods at the best price. If he does so, he will be liable to an action by the tenant (o). If goods on the tenant's lands are sold under a distress, with a condition, to which the tenant is a party, that they may remain on the land up to a certain day, and that the buyer may enter and take the goods, the tenant cannot revoke the Hcence to enter on the lands {p) . (i) Poynter v. BucJdey, 5 {o)Ridgicay\. Lord Stafford, C. "& P. 512. 6 Exch. 404 (overruling Abhey (k) Rapley v. Taylor, 1 C. v. Fetch, supra) ; Frusher v. & E. 150. Lee, 10 M. & W. 709; Haw- (l) Sims V. Tuffs, 6 C. & P. /dfis V. Walrond, L. E. 1 C. P. 207; Bishop v. Bryant, G C. D. 280; Jones v. Hamp, 10 & P. 484. M. & W. 700. (m) Jenner v. Yolland, 6 {^i) Woody. JIanley, 11 A. Price, 5 ; Bullen, IGl. & E. 34 ; Wood v. Leadbitter, (n) Abbey v. Fetch, 8 M. & 13 M. & AV. 838 ; WoodfaH's W. 419 ; Wilmof v. Rose, 3 E. L. & T. 12th ed. 447. & B. 563. 256 PKOCEEDINGS IN DISTRESS. Part I. But such a licence is not implied by law, though the Chaj). YI. goods may have remained on the land with the tenant's assent {q). (k) Expenses We have Seen that, by the terms of the statute 2 iov\-euL^^^ Will. & Mary, sess. 1, c. 5, s. 2, the distrainor may deduct from the amount of the produce of the goods sold, besides the rent, all reasonable charges attending the distress (r). It is now provided by the Law of Distress Amendment Act, 1888 («), that "the costs and expenses of appraisement, when required by the tenant or owner, shall be borne and paid by him ; and the costs and expenses attending the removal of the goods to a public auction room, and any damage to the goods and chattels arising therefi'om, shall be borne and paid by the person requesting the removal." It is worth observing that this power of requiring an appraisement is given not only to the tenant, but to the owner of the goods distrained. So if the owner of a part of the goods requires an appraisement, he will have to pay all the costs of the appraisement both of his owti goods and of the tenant's goods ; as all the goods distrained must be appraised. With regard to the removal of the goods to a public auction room, it will be seen that the Act has omitted to pro^dde that they shall be sold by auction. Formerly the costs of a distress le^ded for rent not ex- ceeding 20/. were regulated by the statute 57 Geo. III. c. 93 ; but this has been in some res2Dects altered by the Law of Distress Amendment Act, 1888 (t). By the rules made pursuant to section 8, sub-section 2, of that Act, it is provided that "no person shall be entitled to any fees, charges, or expenses for levjdng a distress, or for doing any act or thing in relation thereto other than those speci- (q) Wniiams v. Morris, 8 (s) 51 & 52 Vict. c. 21, M. & W. 488. s. 5. (r) Ante, p. 243. (0 51 & 52 Vict. c. 21, s. 8, sub-s. 2. EXPENSES. 257 fied in, and authorized by, the table in Appendix II. to Part I. these rules (w). Chap. YI. Where the rent due does not exceed £20, the fees, charges, Where the siun :' £20. and expenses specified in Scale II. shall be allowed. " '^^ ^=^ ^^^^ ' These are as follows : — s. d. For levj^ing distress . . . . . .30 For man in possession, 4s. Q>d. per daj' ; to pro- vide his own board in every case. For appraisement, on the tenant's ■^^Titten request, whetlier by one broker or more, 6f/. in the j)0und on the value, as appraised, in addition to tlie amount for the stamp. For all expenses of advertisements, if any . . 10 Catalogues, sale and commission, and delivery, Ls. in the pound on the net produce of the sale. For removal, at tenant's request, the reasonable expenses (subject to rule 1~) (■^) attending such removal. These new rules do not sj)ecify an}^ remedy to a party aggrieved where other or greater costs and charges than those above mentioned have been made. We therefore conclude that the provisions of the statute 57 Geo. III. e, 93, with regard to this, still apj)ly, which by section 2 enacts, "That if any person or persons shall in any manner Party levy, take, or receive from any person or persons whatsoever, ^y"applv to or retain or take from the produce of any goods sold for the justices of the payment of such rent, any other or greater costs and charges than are mentioned and set down in the said schedule, or make any charge whatsoever for any act, matter, or thing mentioned in the said schedule, and not really done, it shall be lawful for the party or jiarties aggrieved by such practices to apply to any one justice of the peace for the county, city, or town, and acting for the division where such distress shall have been made, or in any manner proceeded in, for the recli-ess of his, her, or their grievance so occasioned; whereupon such justice shall summon the person or persons complained of to appear («) Eule 15. {x) Post, p. 261. o. s 258 PROCEEDINGS IN DISTRESS. Part I. before him at a reasonable time to be fixed in such simi- Chap. YI. mons, and sucli justice sliall examine into the matter of such complaint by all legal ways and means, and also hear in like manner the defence of the person or persons com- plained of ; and if it shall appear to such justice that the person or persons complained of shall have levied, taken, received, or had other and greater costs and charges than are mentioned or fixed in the schedule hereunto annexed, or made any charge for any matter or thing mentioned in the said schedule, such act, matter, or thing not having been really done, such justice shall order and adjudge treble the amount of the moneys so unlawfully taken to be paid by the person or persons so having acted to the party or parties who shall thus have preferred his, her, or their complaint thereof, together with full costs." Landlord only "Provided always (//), that nothing herein contained he personally shall empower such justice to make any order or judgment levies the against the landlord for whose benefit any such distress shall have been made unless such landlord shall have personally le\ied such distress. Provided always, that no person or persons who shall be aggrieved by any distress for rent, or by any proceedings had in the course thereof, or by any costs and charges levied uj)on them in respect of the same, shall be barred from any legal or other suit or remedy which he, she, or they might have had before the passing of this Act, excepting so far as any comjDlaint to be preferred by vu'tue of this Act shall have been deter- mined by the order and judgment of the justice before whom it shall have been heard and determined ; and which order and judgment shall and may be given in evi- dence under the plea of the general issue in all cases where the matter of such complaint shall be made the subject of any action." (y) Sect. 4. The Summary sect. 3 of the above Act and Jurisdiction Act, 1884, 47 & 48 parts of sects. 2 and 4. Yict. c. 43, s. 4, has repealed EXPENSES. 259 As the terms of the statute 57 Geo. III. c. 93, are eon- Part I. fined to distresses where the sum demanded and due shall Chap. vi. not exceed 20/., it did not extend to a case where more Effect of than 20/. was distrained for, although the goods taken statute. were appraised at and sold for less than 20/. (z). The costs of the distress in the statute were not confined to the actual distress, but included the subsequent costs of ap- praisement and sale (a). By 7 & 8 Geo. lY. c. 17, '' All the rules, regulations, 7 & 8 Geo. 4, clauses, provisions, penalties, matters, and things in the above Act contained are extended so far as the same are applicable and capable of being put in execution with respect to distresses for land tax, assessed taxes, poor rates, tithes, highway rates, sewer rates, or any other rates, taxes, impositions, or assessments whatsoever, in all cases where the smn demanded or due for or in respect of such taxes, rates, tithes, assessments, or impositions shall not exceed 20/." Where the sum distrained for exceeded 20/., there Where the was formerly no rule as to the scale of charges. They 20;. were only required to be reasonable (/>). This has now been provided for by the Law of Distress Amendment Act, 1888 {c), which provides that "where the rent due exceeds 20/., the fees, charges, and expenses specified in Scale I. shall be allowed." These charges are : — For levjdng distress, three per cent, on any sum exceeding 20/., and not exceeding 50/. Two and a-half per cent, on any sum exceeding 50/., and not (;:) Child V. Chamhe7-lain, 5 v. Heskitt, Ex parte Arnison, B. & Ad. 1049. L. E. 3 Ex. 56. («) Per Parke, B., in ^«/'^ (c) 51 & 52 Vict. c. 21, V. Leach, 1 M. & W. 560. which repeals a similar pro- {b) Hills V. Street, 5 Biiig. vision under sect. 49 of the 37 ; Lijon v. Tumkies, 1 M. & Agricultural Holdings (Eng- W. 603. And see Hey sham land) Act, 1883. 260 PROCEEDINGS IN DISTEESS. Part I. exceeding 200/. ; and one per cent, on any additional Chap. YI. sum. For man in possession, 5.s. per day ; to provide his own hoard in every case. For advertisements, the sum actually and neces- sarily paid. For commission to the auctioneer, on sale by auction, seven and a-half per cent, on the sum realized, not exceeding 100/., five per cent, on the next 200/., foiu* per cent, on the next 200/., and on any sum exceeding 500/., three per cent, up to 1,000/., and two and a-half per cent, on any sum exceeding 1,000/. A fraction of 1/. to be in all cases reckoned 1/. Reasonable fees, charges, and expenses (subject to Rule 17), where the distress is withdrawn, or where no sale takes place, and for negotiations between landlord and tenant respecting the distress. For apj)raisement, on tenant's written request, whether by one broker or more, 6d. in the pound on the value as ajopraised, in addition to the amount for the stamp. It is necessary here to mention the recent case of Coode V. Johns ((/), which was decided imder sect. 40 of the Agricultural Holdings (England) Act, 18S3, repealed by this Act. In this case it was held that a bailiff appointed under the Act was not entitled to the percentage on the simi distrained for allowed by the schedule for " levying distress," but only to the guinea allowed thereby to the bailiff; Grove, J., remarking, "Now, taking this section by itself, we should certainly never think that the person contemplated by the section was the bailiff, who is not apj)ointed until the 52nd section. Who, then, are the persons contemplated ? If we look at the 50th and 51st sections, we find that they speak in several places of the {d) 17 Q. B. D. 714. EXPENSES. 261 ' landlord or other j)erson levying tlie distress.' But if Part I. the ' other person ' means the bailiff, why is special men- Chap. VI. tion made of the bailiff's fee for levy in the second schedule ? In my opinion the bailiff is not the person contemplated in this statute as ' levying the distress.' He does not set the law in motion. He is appointed under the 52nd section of the Act by the Coim ty Court judge, and when he levies a distress he for the time acts merely as the servant of the landlord." This fee of 1/. l.s. to the bailiff for levy has been omitted in the new scale of charges ; and if the above case is still law, the bailiff will not now be entitled to any fee for levying, as he is distinctly stated not to be the person who levies the distress. The effect of the new provision seems to overrule the above case. In case of any difference as to fees, charges, and expenses between the parties, or any of them, the fees, charges, and exj)enses shall be taxed by the registrar (e) of the district in which the distress is levied. The registrar may make such order as he thinks fit as to the costs of such taxa- tion (/). A fee of 10s. is payable for such taxation when required if the rent exceeds 201., and of 5s. where it does not exceed 20/. {(/) . Formerly every broker was obliged to give a copy of Copy of his charges and costs of the distress signed by him to the ^'^^'^S®^- person on whose goods such distress was levied {/t). This applied only to cases where the goods had been sold (/) ; and a landlord who did not personally interfere in a dis- tress was not answerable for the neglect of a broker (e) "Eegistrar" means re- {(/) Schedule to Treasury gistrar of a County Court, and Order regulating fees (Law each registrar, where there is of Distress Amendment Act, more than one, and includes 1 a deputy registrar. Law of (A) 57 Geo. III. c. 93, s. 6. Distress Amendment Act, This applied although the 1888, rule 19. amount of rent demanded (/) Eule 17. exceeded 20/. («■) Hillsy. Street, 5Bing. 39. 262 PKOCEEDINGS IN DISTRESS. Part I. employed by him to give a copy of the charges (A-). But Chap. YI. now by the Law of Distress Amendment Act, 1888 (/), " A copy of the table of fees, charges, and expenses autho- rized by the rules under the Act shall be posted up by the registrar in a conspicuous place in his office, and every bailiff levying a distress shall, on the request of the tenant, produce to him a copy of the table." 1 & 2 Phil. & The statute 1 & 2 Ph. & Mary, c. 12, s. 2, enacts that Mary, c. 12, a ^^ person shall take for keeping in pound, imjDOimding, Expenses of ^r poundage of any manner of distress above the sum of impounding-, foiu'pence for any one whole distress that shall be so impounded ; and where less has been used there to take less ; upon the pain of 51. to be paid to the party giieved, over and beside such money as he shall take above the sum of fouriDcnce ; any usage or prescription to the con- trary in anywise notwithstanding." But this enactment has been held not to extend to cases where the goods are impounded on the premises by virtue of the statute 11 G-eo. II. c. 19, s. 10 {m). A bailiff in possession under a distress for rent has no right, after the rent is paid, and the landlord has with- drawn, to sell any of the goods for the payment of his fees and expenses in holding possession (;?). "Where, on a distress for a church rate, the baiUff made certain charges mentioned in the schedide to 57 Gfeo. III. c. 93, which charges, however, though incm-red, were not applicable to such a seizm'e ; it was held that, as he had not claimed any charges not in the schedule, and had acted bond Jide, he was not liable to the penalty (o) . (1) Surplus As we have seen, by the statute 2 Will. & Mary, sess. 1, proceeds and ^ 5^ g_ 2, landlords are authorized, after giving notice, to (k) Hart V. Leach, 1 M. & W. («) Harding v. Hall, 1 4 L. T. 560. N. S. 410. (J) Eule 18. (o) Nott V. Bound, L. E. 1 {m) Child V. Chamberlain, 5 Q. B. 405. B. & Ad. 1049. SURPLUS. 263 cause the goods and chattels distrained to be appraised and Part I. sold " towards satisfaction of the rent for which the said Chap, VI. goods and chattels shall be distrained, and of the charges of such distress, appraisement, and sale, leaving the overplus {if any) iti the hands of the said sheriff, under-sheriff, or constable, for the owner's use." In practice, the overplus is often paid over to the tenant or his agent, and when this is done the tenant cannot complain that it has not been paid over to the sheriff or under-sheriff for his use, since the statute is thereby substantially satisfied (^j). If the overjilus is not so left, and the landlord is not guilty of any misconduct ynih. regard to the distress, he is not liable in an action for money had and received to recover the overplus money in the landlord's hands. The proper remedy is an action on the case against him for not paying over such overplus to the sheriff pursuant to the statute {q) . The overplus which by this statute was directed to be Meaning of left in the hands of the sheriff, under-sheriff, or constable, *^^®^P &c., meant the overplus after payment of the rent and reasonable charges. Therefore, in an action on the case for Reasonable- not leaving the overplus in the hands of the sheriff, &c., chari^es, ^ the plaintiff was enabled to question the reasonableness of the charges. And where the plaintiff himself received from the broker the balance remaining after payment of the rent and the actual charges, making no objection as to their reasonable- ness ; it was held that it was a question for the jmy whether he accepted such balance in satisfaction, and if not, whether it was sufficient to satisfy the real balance ; (jo) Per Lord Abinger, in {q) Yates v, Eastwood, 6 Lyon V. Tomkies, 1 M. & W. Ex. 805 ; distinguishing Gra- 606; Cross \.Ayrcs,\Y.&'F. ham v. Tate, 1 M. & S. 609, 187, And see Evans v. Wright, 2 H. & N. 527, PKOCEEDINGS IN DISTEESS. Part I. but that it was not correct to lay it down as a matter of Chap. VI. law that such payment and receipt substantially satisfied the regulations of tlie statute (r). Now, as we have seen above («), provision has been made whereby the charges are fixed, whatever is the amount of the sum distrained for. And so long as tlie landlord detains the distress without sale, he cannot maintain an action against the tenant for the rent, even although the goods distrained are not of sufficient value to satisfy the amount of the rent dis- trained for {t). For when the law gives a man two remedies — one by a kind of execution, as by levying a distress, and the other by a personal action— he cannot, if he chooses to resort to the former, have his action so long as the distress is in force {u). But where the goods have been sold, and the proceeds are insufiicient to satisfy the rent due, the landlord has a remedy by action or counter-claim for the balance [x). Where goods distrained for rent in aiTear have been removed to a convenient place for sale, and sufiicient have been sold to satisfy the distress, including the expenses, the proper course is for the broker to leave the surj)lus money with the sheriff, under-sheriff, or constable, and return the sm^plus proceeds to the premises from whence he took them {//). And this is the case even though they are the goods of thu^d parties, and the bailiff has had notice of this after the impounding, and has promised to act on the notice, both as to the goods unsold, and the sm-plus proceeds of the goods sold ; for such a promise does not impose any duty on the bailiff to deliver the goods to (r) Lyon v. 7'omkies, 1 M. 6 W. 603 ; Kniyht v. Egerton, 7 Exch. 407 ; Simpson v. Routh, 2 B. & C. 682. (s) Ante, pp. 257, 259. {t) Lehain v. Philpott, L. E. 10 Ex. 242. . {ii) Per Cleasby, B., in Lehain v. Philjyott, supra. {x) Philpott V. Lehain, 35 L. T. N. S. 855. (?/) Evans v. Wi'ight, 2 H. & N. 527. SURPLUS. 265 tlie right o^^Tier. For a landlord distraining exercises a Part I. legal right, and may decline, in the exercise of it, to Chap. Vl. embarrass himself with the rights of third parties. He may restore the goods remaining unsold to the premises from which he removed them, and may leave any stranger who claims them to enforce his right against the tenant. The liability of goods to distress does not depend on the ownership of them, but upon their being found on the premises demised (s). (z) Per Pollock, C. B., in Evans v. Wriyht^ supra. 266 SATISFACTION OF AKEEARS OF RENT CHAPTEE YII. SATISFACTION OF ARREARS OF RENT BY THE EXECUTION CREDITOR. As we have mentioned before, goods in tlie custody of the law under an execution cannot at common law be dis- Notice by trained for rent (a) . The landlord must in such a case claimTor rent 8'^^® notice to the sheriff in possession of his claim for rent 8 Anne c. 14, under the statute 8 Anne, c. 14, s. 1, which enacts that ^- ^- "No goods or chattels whatsoever lying or being in or upon any messuage, lands, or tenements, which are or shall be leased for life, or lives, term of years, at will, or otherwise, shall be Uahle to he talien by virtue of any execu- tion on any pretence whatsoever, unless the party at ichose suit the said execution is sued out, shall, before the rentoral of such goods from off the said premises, by virtue of such execution, or extent, pay to the landlord of the said premises, or his bailiff, all such sum or sums of money as are or shall be due for rent for the said premises at the time of the taking such goods or chattels by virtue of such One year's execution (i), provided the said arrears of rent do not claimed^ ® amount to more than one year's rent ; and in case the said arrears shall exceed one year's rent, then the said party at whose suit such execution is sued out, paying the said landlord or his bailiff one year's rent, may proceed to execute his judgment, as he might have done before the making of this Act ; and the sheriff or other officer is hereby empowered and required to levy and pay to the (a) Ante, p. 141 ; Wharton (Z») For forms of notice under V. Naylor, 12 Q. B. 673. this statute, see Appendix A. (12) and (13). BY EXECUTION CREDITOK. 267 plaintiff as well the money so paid for rent, as the Part I. execution money." Chap. VII. And sect. 8 provides that " Nothing in this Act con- Exception in tained shall extend, or be construed to extend, to let, Crow.°' *^^ hinder or prejudice her Majesty, her heirs or successors, in the levying, recovering, or seizing any debts, fines, penalties, or forfeitures due, payable, or answerable to her, but that it shall and may bo lawful for her to levy, recover, and seize the same in the same manner as if the Act had never been made " (c). By the statute 7 & 8 Yict. c. 96, s. G7, it is enacted that 7 & 8 Vict. " No landlord of any tenement let at a weekly rent shall ^' ' ^' have any claim or lien upon any goods taken in execution tenancfes. under the process of any court of law for more than foiu' weeks' arrears of rent ; and if such tenement shall be let for any other term less than a year, the landlord shall not have any claim or lien on such goods for more than the arrears of rent accruing during four such terms or times of payment." The 8 Anne, c. 14, s. I, is to be construed hberally (r/), Construction namely, in favour of landlords. It does not, however, 0**^^8 Anne, apply to executions at the suit of the landlord (e) . It extends to those levied on any description of judgment, whether for the j>laintiff or the defendant in the action; and so it has been held to apply where a defendant sued out execution for his costs of defence (/), and also to the seiziu-e of goods under an outlawry in a civil suit (g). It seems that a sequestration from the Court of Chancery is likewise an execution within the statute, and, therefore, {c) Attorney- General Y.Leo- (/) Henchett v. Khnpson, narcl, 38 Ch. Div. 622. siqrra. {d) Henchett v. Khnpson^ {g) Groves v. D'' Acastro. 2 Wils. 140. Biinb. 194; St. John's College, (e) Taylor v. Lanyon, 6 Oxford v. Murcott, 7 T. E. Bing. 536. 259 ; WoodfaU's L. & T. 12th ed. 455. 268 SATLSFACTION OF AKKEAKS OF RENT Persons who come under tlie statute. Where more than one execution. Part I. in sucli case the landlord mil be entitled to claim a year's Chap. VII. rent in preference to other creditors {h). A ground landlord is not a person entitled to receive a year's rent within the statute (/), but lessees and under- tenants are within the statute, as also are goods in an apartment, which is part of a messuage (7). Proceedings in bankruptcy, however, are not within the Act. In such a case the landlord is entitled to distrain {k) . "Where there are two or more executions on the tenant's goods, the landlord cannot have a year's rent on each, but must demand it out of one only (/). If the goods remain on the demised premises after a fictitious bill of sale made of them under an execution, they are liable to be dis- trained (m). Notwithstanding a fraudulent bill of sale by the tenant, the property remains vested in him, so as to be liable to an execution against his goods, or a distress {n) . Where a sheriff's officer executed a /. fa. by going to the house and informing the debtor that he came to levy on his goods, and laying his hand on a table said, " I take this table," and then locked up liis warrant in the table drawer, took the key, and went away wdthout lea^-ing any person in possession, and after the Ji. fa. was returnable the landlord distrained the goods for rent; it was held that the distress was regular (0). The Act applies to aU goods and chattels whatsoever on To what the Act applies. {h)Dixon\.Sniit/i,l Swanst. 457. (i) Bennett'' s case, Stra. 787. {j) ThurgoodY. Richardson, 7 Bing. 428. {k) Lee v. Lopes, 15 East, 230 ; Gethin v. Wilks, Gale v. Wilks, 2 Dowl. Eep. 189; Tai/lorv. Lanyon, 6 Bing. 536. (7) Dodd v. 8axby, 2 Str. 1024. V. Russell, 3 (in) Smith Taunt. 400. («) Reedy. Thoyts, 6 M. & W. 410 ; Woodf all's L. & T. 12th ed. 455. (0) Blades Y. Arundel, 1 M. & S. 711. See Ex parte Davis, In re Pollen'' s Trustees, 54 L. T. N. S. 304. BY EXECUTION CREDITOR. 269 the demised premises, -wlietlier belonging to the tenant or Part I. not (/?), and whether liable to a distress or not (q). Chap. VII. Where under a writ of Ji. fa. the sheriff levied on and removed goods which were not the property of the judg- ment debtor, the owner recovered by action the whole proceeds of the levy. Before the removal of the goods from tlie premises the sheriff had notice of a year's rent being duo, which he did not pay ; and it was held that although he had paid the whole proceeds of the levy to the owner of the goods, yet he was liable imder this statute for removing them without paying the rent {>'). The goods may not be removed from off the premises The year's until the year's rent is first paid. The seizure by the paid before BheriH is lawhxl prima facie ; but if the goods are removed removal. without payment of the rent, after notice that it is due, Wrongful ^ '' ' ' removal. such removal renders the whole proceeding unla"\vful as regards the landlord, and subjects the sheriff to an action at his suit (.s), or to a summary application to a division of the High Coiu't out of which tlio execution issues, or to a judge to compel him to pay the aiTcars of rent and the costs of the application (f) , but not an action for money had and received {ii). But where the sheriff seizes goods in execution, and assigns to an execution creditor, having notice that a year's rent is due to the landlord, though he may be liable to an (p) Taijlor Y. Lamjon, supra. Jr. Com. L. E,. 308 ; Barshaw Iq) Riseley v. liijle, 11 M. v. Bullock, 2 P. & D. 241; & W. 16, 19. ReeclY. Thoijts, 8 Dowl. 410; (r) Forster v. Cookson, 1 Q. "Watson on the Sheriff, 2nd B. 419 ; Duck V. Braddyll, 13 ed. 277. Price, 455. (0 West v. Hedges, 6 M. &, (s) Riseley V. Ryle, 11 M. G. 1004 ; Henchett v. /u/?i/> & W. 16, 19, 20; Levy v. son, 2 Wils. 140; Arneft v. Godson, 4 T. E. 687 ; Calvert Garnett, 3 B. & A. 440 ; Yates V. Jolly, 2 B. «fe Ad. 418; v. Ratledge, 5 H. & N. 249; Wintle V. Freeman, 11 A. & Woodf. L. & T. 12th ed. 456. E. 547 ; Forster v. Cookson, 1 {u) Greeny. Austin, 3 Camp. Q. B. 419 ; Bible v. Hussey, 2 260. 270 SATISFACTION OF ARREARS OF RENT Part I. action, yet sucli landlord cannot distrain for a year's rent Cliap. VII. whilst the goods are in the hands of the sheriff, or his assignee (.r). The sheriff is not liable to an action unless there has been an actual removal of the goods from the premises ; and the mere execution of a bill of sale by him to a purchaser is not equivalent to such a removal (y) . No action lies against the execution creditor for any such removal (z) . Liability of the sheriff. The statute only applies to existing tenancies. The statute 8 Anne, c. 14, s. 1, only applies to existing tenancies ; and therefore, where the sheriff seized goods of a tenant whilst in possession wdthin six months after the determination of his lease, and sold the goods, paying the proceeds to the creditors wdthout satisfying the landlord's arrears of rent ; it was held that the sheriff was not liable to an action ; for that the landlord's right to a year's rent under the first section of this statute ceased upon the determination of the lease, although by sects. 6 and 7 he retained a power of distress for six months afterwards (a) . Where, in an agreement for a lease for the sale and assignment of certain premises, there was a stipulation " that in the meantime, and until the assignment was made, the intended purchaser shoidd pay and allow to the seller at the rate of 100/. per annum from the time of taking possession of the premises until the completion of the purchase," the intended purchaser having taken possession, and one half-yearly payment having become due for the completion of the pm-chase ; it w^as held, that it was due as rod ; and that the sheriff, levying on the {x) Wharton v. Naylor, 12 Q,. B. 673 ; Riseley v. Ryle, supra. (y) SmaUman v. Pollard, 6 M. & G-. 1001 ; White v. Bin- stead, 13 C. B. 304. {%) Palgrave v. Windham, 1 Stra. 212; Riseley v. Ryle, supra ; Cockers v. Musgrove, 9 Q. B. 230. (a) Cox V. Leigh, L. li. 9 Q. B. 333 ; Saunders v. Mus- grave, 6 B. & C 524 ; Hodgson V. Gascoigne, 5 B. & Aid. 88; Rotherey v . Wood, 3 Camp. 24. BY EXECUTION CREDITOR. 271 goods of the occupier under a Ji. fa., was bound by the Part I, statute 8 Anne, c. 14, to pay it over to the seller as Chap. VII. landlord {h) . The Act applies to forehand rents payable in advance {c) , Forehand even when reserved in a mortgage deed, by way of addi- tional security for the interest (c/). And even although the landlord is aware that an execution is about to be sent down at the suit of an execution creditor, he may distrain for a year's relit {e). The rent to which the landlord is entitled is that which Rent to which is due for a year immediately preceding the execution ; and -g entitled'^ therefore, if the tenant holds under a lease at one rent, and afterwards under a second demise at another, the landlord cannot demand the amount of a year's rent unpaid upon the expired lease (/). He is entitled to a full year's rent, if in arrear, notwithstanding that he has sometimes re- mitted some portion of it to the tenant ()^ ^1^^^^ u section one of the Act of the eighth year of the reign of Queen Anne, c. 14, shall not apply to goods taken in execution under a warrant of the Court, but the landlord of any tenement in which any such goods shall be so taken mai/ claim the rent thereof at any time within five clear days from the date of such taking, or before the removal of the goods, by delivering to the bailiff or officer making the levy any writing signed by himself or his agent, which shall state the amount of rent claimed to be in arrear ((7), and the time for and in respect of which such rent is due ; and if such claim be made, the bailiff or officer making the levy shall, in addition thereto, distrain for the rent so claimed and the costs of snch distress, and shall not within five days next after such distress sell any part of the goods taken, unless they be of a perishable natm^e, or upon the request in Avriting of the i^arty whose goods shall have been taken ; and the bailiff shall after- wards sell such of the goods under the execution and dis- tress as shall satisfy, first, the costs of and incident to the sale; next, the claim of such landlord, not exceeding the rent of four weeks where the tenement is let by the week, the rent of two terms of payment where the tenement is let for any other term less than a year, and the rent of one year in any other case ; and, lastly, the amount for whicli the warrant was issued ; and if any replevin be made of the goods so taken the bailiff shall, notwithstanding, sell such portion thereof as will satisfy the costs of and incident (o) Seven v. 3/ihill, 1 Lord 20 Vict. c. 108), s. 75. Ken. 370. (q) For form, see Appendix (7;) Whicli consolidates the A. (14). County Com-ts Act, 185(5 (19 &- BY EXECUTION CKEDITOK. 279 to the sale under the execution, and the amount for which Part I. the warrant issued ; and in either event the overplus of the Chap. VII. sale, if any, and the residue of the goods, shall be returned to the defendant ; and the poundage of the high baihff and broker for keeping possession, appraisement, and sale under such distress shall be the same as would have been payable if the distress had been an execution of the Court, and no other fees shall be demanded or taken in respect thereof." If a bailiff, under a waiTaut of the County Court, seize Goods of a on the defendant's premises the goods of a stranger, he s^'^^^o^^- cannot distrain and sell such goods, under this enactment, for the rent of the landlord. If he does so, the stranger has a perfect riglit at any time to remove the goods and avoid the distress (/•) . If a claim for rent be made upon goods seized mider Notice of rent Admh-alty process, the judge of the Probate, Divorce, exetuU^*S and Admiralty Division adjudicates upon the claim. For Admiralty it is enacted by the Admiraltv Com-t Act, 1861 (24 & 25 ^^?^^.^^' . " . , , Admiralty Vict. c. 10, s. 16), that "if any claim shall be made to any Court Act, goods or chattels taken in execution under any process of ^' the High Court of Admiralty, or in respect of the seizure thereof, or any act or matter connected therewith, or in respect of the proceeds or value of any such goods or chattels, bt/ any landlord for rent, or by any person not being the party against whom the process has issued, the registrar of the said Coiu-t may, upon application of the officer charged with the execution of the process, whether before or after any action brought against such officer, issue a summons, calling before the said Court both the fr) Beard \. Knujht, 8 El. the hearing of an interpleader & Bl. 865 ; Foulget v. Taylor, summons iu a County Coiu't, 5 H. & N. 202 ; Thornton v. he, as "well as the execution Adams, 5 M. «fe S. 38 ; White creditor and the claimant, has V. Binstead, 13 C. B. 304. a right of appeal. Gage v. Where a landlord appears on Collins, L. E. 2 C. P. 381. ^oi) SATISFACTION OF AREEARS OF RENT. Part I. party issuing such process and the party making the Chap. YII. claim ; and thereujoon any action which shall have been brought in any of her Majesty's Superior Courts of Record, or in any local or inferior Court, in respect of such claim, seizure, act, or matter as aforesaid, shall be stayed ; and the Court in which such action shall have been brought, or any judge thereof, on proof of the issue of such summons, and that the goods and chattels were so taken in execution, may order the party bringing the action to pay the costs of all proceedings had upon the action after issue of the summons out of the said Admi- ralty Court ; and the judge of the said Admiralty Court shall adjudicate upon the claim, and make such order between the parties in respect thereof and of the costs of the proceedings, as to him shall seem fit ; and such order shall be enforced in lilce manner as any order made in any suit brought in the said Court. Where any such claim shall be made as aforesaid, the claimant may deposit with the ofiicer charged mth the execution of the process either the amoimt or value of the goods claimed, the value to be fixed by appraisement in case of dispute, to be by the officer paid into Court to abide the decision of the judge upon the claim, and the sum which the officer shall be allowed to charge as costs for keeping possession of the goods until such decision can be obtained ; and in default of the claimant so doing, the officer may sell the goods as if no such claim had been made, and shall pay into Court the proceeds of the sale, to abide the decision of the judge." And by the Judicature Act of 1873, s. 34, it is pro- vided, that matters within the exclusive cognizance of the High Court of Achnu-alty, before the passing of that Act, are assigned to the Probate, Divorce, and Admiralty Divi- sion of the High Comi of Justice. 281 CHArTER VIII. HY ^^II \T MEANS rilE RIGHT OF DISTRESS MAY BE TAKEN A\\A^. So far, in our preceding chapters, we have considered the persons by whom, and tlie cases in which, a distress for rent can ho made ; and it seems to us advisable to shortly recapitulate the cases in wliich a distress for rent cannot be made. Many of these we liave discussed before ; but perhaps it Summary of will not be inconvenient to caU the reader's attention to ifu^^^^^'j- when a dia- tliom once again. In some cases, as in the instance of tress for rent tender, the poA\er to distrain simply for some particular made, amount is taken away ; in others, the existence of the rent is altogether determined, and consequently all remedy by distress for its recovery lost. Where, for example, there is no actual demise at a fixed Where no rent {a) , or where a sum is reserved, or issues out of afa fixed°^^ personal propeiiiy {b), or some incorporeal hereditament (c), rent, the remedy by distress is not applicable. So again, by the expiration of the term, whereby the privity of estate was absolutely destroyed, the rent itself, as well as the right to exercise that particular remedy, was entirely at an end. And although the statute 8 Anne, c. 14 (d), and 3 & 4 Will. lY. c. 42 (e), effected a remedy in this respect, still it must be observed that unless the remedy is exercised within the time laid down, and the («) Ante, p. 29. {d) Ante, p. 185. (b) Ante, p. 3. (e) Ante, pp. 58, 188. (c) Ante, p. 3. 282 DISTRESS FOR RENT. Part I. Cliap. VIII. By determi- nation of the lessor's interest. circumstances tlierein expressed, the ex^OTation of the tenancy will have barred the distress for ever. Or again, by the determination of the lessor's interest ; by the extinction of the rent, whether in the case of a rent service (as by the tenant's eviction by title paramount from the land, or by the landlord's own act, as where he purchases the tenancy), or whether in the case of a rent- charge (as by the grantee purchasing or releasing all his rights in the land, or by releasing the rent itself), the right of distress is in all these cases illegal. So again, if the lessor parted with his reversion, the remedy of distress was destroyed at common law, and the powers of the statute 4 Greo. II. c. 28, were obliged to be resorted to before a distress for a rent-seek coidd be taken advantage of. The merger of the reversion is also a means by which the right of distress is altogether taken away ; but if the lease on which the rent is reserved was originally derived from an inheritance in fee, the extinction of a particular estate, subsequently created, would not affect the remedy against the lessee for the term (./') ; and the same principle would apply where a tenant for life granted a lease under a power in the deed creating his estate. For the estate of the lessee is in such a case derived out of the inheritance, and not out of the particular estate ; and, therefore, on the extinguishment of the particular estate, the reversioner or remainderman has the same remedy by distress as the tenant for life had {g). By the non- And again, the right to distrain may be taken away by of a ccmdition ^^^ non-performance of a condition which is precedent to precedent. the rent becoming payable {h). Where lessor parts with his reversion. By a merger of the rever- {f) Threr v. Barton, Moore, 94; Smith v. Bay, 2 M. &W. 684 ; Thome v. WooUcomhe, 3 B. & Ad. 586. (y) Bulleii, 170. {Ji) Regnart v. Porter, 7 Biug. 451 ; Hopcraft v. Keys, 9 Bing. 613 ; Mechelan v. Wallace, 7 Ad. & Ell. 54, n. BY WHAT MEANS IT MAY liE TAKEN AWAY. 283 The right of distress for rent is not so inseparable an Part I. incident to a demise that it cannot be postponed, taken Chap, v III. away, or suspended by an express or implied agreement (a) By agree- between the parties not to distrain. ^trahi! Therefore, where A., a mesne landlord, let premises to B., an undertenant, by a written agreement, which pro- vided that no distress shoidd be made till after A. had produced the receipt of his superior landlord for A.'s rent ; and A. afterwards distrained for his rent without pro- ducing such receipt ; it was held that A.'s right was jyod- jwned until after his rent had been paid (/). So a landlord may for good consideration undertake not to distrain for six months {k). And where a tenant, who was in aiTcar with his landlord, was distrained upon, having previously executed a bill of sale of all his effects to a creditor, amongst which was a crop of growing grass not in the distress ; and an an-angement was made by the landlord's agent and the creditor under this bill of sale that a sale should take place, and the arrears of rent be paid out of the j)roceeds ; and the growing crop was sold with the rest as eatage, the proceeds of the sale being paid over to the landlord, but not satisfying the rent ; it was held that from these facts a contract nii(//it be implied on the part of the landlord not to distrain the cattle of the pm'chaser of the grass ; and, therefore, the distress by the landlord of his cattle, whilst eating the grass so purchased, was unlawful (/). A superior landlord may undertake not to distrain on the goods of an intended lodger of his tenant (m) . Where a landlord's receiver allowed a tenant every year for seven- teen years to make a deduction in respect of a pajTnent (j) Giles V. Spencer, 3 C. B. (?») Horsford v. Webster, N. S. 244; Yin. Abr. Eeleases, supra. (Though, as we have G. seen, the Lodgers' Goods Pro- (k) Oxenham v. Collins, 2 F. taction Act renders such an & F. 172. undertaking now generally (J) Horsford v. Webster, 1 unnecessary. See ante, p. Cr. M. & K. G96. 156.) 284 DISTRESS FOR RENT. f^^^^V-' ^°^' ^^'^^ ^^^ greater than tlie landlord was liable to pay, ^ : the landlord knowing, or having the means of knowing, all the facts ; it was held that the latter could not after- wards distrain for the sums eiToneously allowed, though the receipt given every year showed the amount really Acceptance of paid, and the amoimt deducted (>/) . In the same wav, of double where double rent has accrued due on the tenant's holding rent. 0^^^ after notice under the 11 Geo. II. c. 19, it appears that the acceptance of single rent by the landlord would waive his right to distrain for more (o) . Condition precedent. (b) Effect of an agreement for interest on rent. But if the landlord's agreement to forego his remedy is dependent on the performance of a condition precedent by the other party, this condition must be strictly earned out in order to avoid the distress. Thus, in a case where the plaintiff being about to take an apartment of the defen- dant's tenant was promised by the defendant that his goods should not be taken so long as he paid the rent of the apartment to the tenant ; and subsequently to his having paid part, and tendered the residue of the aiTears, the defendant, who had no notice of the tender, dis- trained his goods for rent due from the tenant ; it was held that the defendant's right to distrain was not barred (p). It must here be observed, that an agreement to take interest on rent in arrear does not take away the right of distress ; for this is only an agreement for that which the law would have given to the landlord. There is no sus- pension of the distress, and the landlord at any time has a right to determine his forbearance and distrain for the rent (q). («) Bramston v. Roliiis, 4 Bing. 11, 12; Waller y. An- drews, 3 M. & W. 312. See also Foivkes v. Joyce, 2 Vern. 129 ; 2 Wms. Saund. 290, n. (7). • (o) Doe d. Cheney v. Batten, Cowp. 243; Bullen, 172. {})) Welsh V. Rose, 6 Bing. G38; Bullen, 172. {q) Skerri/ v. Preston, 2 Chit. Eep. 245. 15Y Wirvr .NfHAN.S IT MAY I'.i: TAKKN AWAV. 285 li' tluj laudlijid takes a sociu-ity for rent iu arrear. as if Part I. he take a bond, bill of excliange, or promissory note, this Chap. \ III. ^vill not of itself amount to a payment of the rent, nor (c) Etfect of suspend or take away his riglit to distrain. For rent is Ji^curity for considered by tlie law to be a debt of a nature higher even the rent. than a demand upon a bond or other si)ecialtv : nor does ^P^} ^'^ ^ p ^ p • ^p 1 • 1 higher nature tile receipt of such note of itself suspend the right of dis- than a training (/•). Nor can a set-oif, to an equal or gi-eater «P'^"^ltydeU. amount of the rent in aiTear, take away the right to dis- train (s). If a tenant, on whom his landlord has distrained for Promissory rent, gives a promissory note for the amount jointly with ^^^^' another person to release his goods, and a subsequent dis- tress is made on him for arrears of rent accruing due after the period to which the note referred, the i)roduce of the sale of such latter distress must be ajiplied in discharge of the note. The landlord cannot apply it in discharge of the subsequent rent, and then sue tlie person who joiiK'd in giving the note for the former rent {f). But pa^Tnent of the bond, bill, or note would be an extingidshment of it ; or even a judgment obtained upon a bond (u) ; although Revival of the landlord's right to distrain revives ui^on an execution Sftrai^ being waived (x) . In a case where a tenant being indebted to his landlord for rent, the landlord's agent without liis authority took a bill of exchange from the tenant and paid Bill of ex- over the amount of the rent to the landlord in his settle- ^'^^^S^- ment of account, and the bill was dishonoured in the hands of a third party, and the rent not paid by the tenant ; it was held that it was a question for the jury (?•) Dalies V. Gi/de, 2 A. & Hancock, 1 Bred. & B. 46; E. 623 ; Murray v. King, 5 B. Stitbbs v. Parsons, 3 B. & A. & A. 165; Harris Y. S/iipicai/ 521; Wilson v. Davenport, 5 and Ewer v. Ladi/ Clifton, C. & P. 531. Bull. N. P. \%1; Seven v. {t) Palfrey y. Baker, ^Vvice, Jlihill, 1 Lord Ken. 370. 572. (s) Ahsalam v. King, Bull. {ii-) Harris \. Shipicay,Eiver N. P. 181; Laycockx. Tifnell, v. Lady Clifton, supra. 2 Chit. Pep. 531 ; Andrew v. {x) Seven v. Mihill, supra. 286 DISTRESS FOR RENT. Part I. Chap. VIII. (d) Second distress ; (1) in case of insufficiency. wlietlier such bill "was discounted for, or tlie money lent to the tenant by, the agent, or whether it was an advance by the agent to the landlord ; in which latter case he was entitled to distrain ; and that if the bill was discounted for, or the money so lent to, the tenant, the landlord was not entitled to distrain — otherwise he was (//) . And where to an action of covenant for rent against three defendants it was pleaded that 41/. of the rent was paid ; that of the residue, two of the defendants had paid their shares, and that the other had given the plaintiff a promissory note for his share payable at a banker's ; that such note was dis- honom-ed, whereupon the plaintiff sued him, and had judgment by default on the note, which judgment was still unsatisfied ; it was held that the judgment was no merger, being obtained" on a collateral security, and not having produced actual satisfaction (z). A right of distress is not a secimty or remedy to the benefit of which a surety paying rent is entitled under the Mercantile Law Amendment Act, 1856 (a), s. 5. Such a right cannot be considered as a security held for a debt ; it is a particidar remedy which arises on non-payment, and the above section appears to be dealing with securities which are in their nature assignable. And this is not the case with the power of distress for rent, which, according to the common law, was only incidental to the immediate reversion (b). There is another general rule which limits the right of a landlord to distrain ; namely, that the whole amount of rent in arrear must be distrained for at once, if sufficient goods can be found upon the premises, or if the distress has not been voluntarily abandoned (c) ; and that after a distress (y) Parrott v. Anderson, 7 Ex. 93; Griffiths v. Chiches- ter, 7 Ex. 95, note (a). (s) Drake v. Mitchell, 3 East, 251. («) 19 & 20 Yiot. c. 97. {b) Russell V. Shoolhred, 29 Ch. Div. 254. (c) Dcncson v. Cropp, 1 C.B. 961. For form of statement of claim for distraining twice for the same rent, see App. A. (21). BY WHAT MEANS IT MAY BE TAKEN A\VAY. 287 for rent has once been made, no second diafrcss will be valid Part T. for the same rent. Chap. VIII. By the old statute of 17 Car. II. c. 7, s. 4 (which was 17 Car. 2, passed to protect landlords in cases where, after a distress • ' ' • • had been replevied, the tenant had been nonsuited, or had judgment given against him, by simplifying the mode of proceeding in such cases in manner there pointed out), an express provision was given to landlords " in all eases where the value of the cattle distrained should not be found to be of the full value of the arrears distrained, the party to whom such arrears were due, his executors or administra- tors, might from time to time distrain again for the residue of the said an-ears " {(I). A person entitled to distrain for an entii'e demand An entire cannot split it. So where a landlord entitled to a rent- cannot be charge distrained in another part of the land out of which divided, the rent issued for half-a- year's payment, having pre- viously distrained the same sum upon the other part ; it was held that the grantee of the rent-charge could not divide the demand, and distrain for part on one part of the land, and afterwards for the residue on the other (e) . A man is not entitled to distrain at different times for rent due on the same day. But if rent becomes due at different times he may distrain separately (./'), provided the arrears be several and distinct (g) . A second distress cannot be justified where there is enough which might have been taken upon the first dis- tress, if the distrainor had then thought proper ; for he {d ) This statute seems, Cha7nhers, 1 Burr. 589 ; 1 however, to have been re- Wms. Saund. 201, n. 1. pealed by the Statute Law {f)GamhrellY.EarlofFal- Eevision Act, 1881, and no- mouth, 4 Ad. & Ell. 73 ; Lear thing appears to have been v. Caldecott, 4 Q. B. 123 ; substituted for it. White v. Greenish, 11 C. B. (e) Oweyis v. Wynne, 4 El. N. S. 209. & Bl. 579 ; Wallis v. Saville, {/). The tender must be of the full amount of rent, without any deductions, excej)t in certain cases which we have already mentioned (~) . It should also be made unconditionally. A tender of a quarter's rent with a demand of a receipt to a particular day, the contest between the parties being whether one or two quarters' rent was due, is not a valid Sm. L. C. 8th ed. p. 147 ; (0 Woodfall's L. & T. 12th Firfh V. Purvis, 5 T. E. 432 ; ed. 386. Thomas v. Harris, Man. & Gr. (u) Ante, Chapter YI. 695; Laddv. Thomas, 12 Ad. (x) West v. Nibbs, 4 C. B. & Ell. 117 ; Tennant v. Field, 172. 8 El. & Bl. 336. (y) Keating v. Irish, Lutw. (s) Johnso7i V. Upham, 2 E. 229. & E. 250; overruling' Ellis v. (z) Ante, p. 174. Taylor, 8 M. & AV. 415. I3Y WHAT MEANS IT MAY liE TAKEN AAVAY. 295 tender (r?). But sending a certain sum "to settle one Parti, year's rent " does not impose a condition (b) ; nor does a Chap. MIL tender under protest (c) . A distress may now be restrained by ini unction. This (s) Restrain- loir 3> distrGss was not so before the Judicature Acts (d) ; but by sect. 25, by injunction, sub-sect. 8 of the Judicature Act, 1875, " an injunction Judicature may be granted by an interlocutory order of the Court in g. 25 sub-s. 8. all cases where it shall appear to the Court to be just or convenient." In the case of S/iair v, J^rirl of Jersc// {(-), the plaintiffs were assignees of a mining lease, under which the defendant claimed to be entitled to an additional rent. The defendant distrained twice, and the plaintiffs sued for an unlawful distress. A special case was stated to determine the construction of the lease ; and the defendant was restrained by injunction from distraining until the determination of the case. But the Coiu:t will not grant an injunction to restrain a landlord from distraining for rent, even though it is doubtful whether he is entitled to such rent, without pro-s-idiug for the landlord having the amount of such rent seciu-ed to him, in the event of liis ultimately being found to be entitled to it (./' ) . In the case of Carter v. Salmon {g), A. agreed in writing to let a farm to B. The agreement reserved a rent pay- able at stated intervals, and provided that A. should put the premises in repaii\ B. alleged that prior to the agree- ment being signed, A. promised verbally that if B. would take the farm the buildings should be put into a thorough state of repair, and that no rent should be demanded till this was done, and that on the faith of this promise B. (fl) Finch V. Miller, 5 C. B. (f/) Besl v. Drake, 11 Hare, 428. 369. (6) Brotv7iY. Oicen, 11 Q.B. (e) L. E. 4 C. P. D. 129, 130 ; Bull V. Parker, 2 Dowl. 359. N. S. 345. (/) S/iaw V. The Earl of (c) Manning v. Lunn, 2 C. Jersey, supra. & K. 13 ; WoodfaU's L. & T. (/ V. lVe7if, 51 L. T. N. S. 764. 297 CHAPTER IX. OF A DISTRESS OF THIXGS DAMAGE FEASANT. IlrriiERTo we have treated exclusively of tlie rights enjoyed by a landlord to distrain for arrears of rent, and it will now he necessary to consider a branch of this subject which is almost as impoi"tant, namely, the right of distrain- ing things damage feasant. Tliis has been defined as "a remedy by which if cattle Definition of or other things are on a man's land encumbering it, or ^^^^s^ otherwise doing damage there, he may simimarily seize them without legal process, and retain them impounded as a pledge for the redress of the injury he has sustained" (a). It has also been said to be '' a remedy applicable wherever anything animate or inanimate is upon land doing dtDuage thereto, or to its produce, and it is available for any person who is aggrieved by such damage " (i). With regard to inanimate things, it has been held in a Applies to case decided on the Railways Clauses Act, 1845 (c) (which JJ^™**® provides that no one shall use an engine on the rail of a company which has not been approved of by the company, and that a certificate of the approval may be obtained by certain steps ; and that if an engine be used on the rail- way without a certificate the party using shall forfeit to the company a sum not exceeding 20/., and the company may remove the engine), that a company has a common law right of distress damage feasant on an engine encumhcring the railuay, if there is no certificate of ap- proval {d). (a) Fleta, 101, s. 25; 51 116. Hen. III. St. 4; Bullen, 227. (rf) Amhergate Rail. Co. v. {b) Bullen, 227. Midland Rail. Co., 2 El. & Bl. (c) 8&9Yict. c. 20, ss. 115, 793. . 298 DISTEESS DAMAGE FEASANT. Part I. Chap. IX. Distinction between dis- tress for rent and for damage feasant. Who may- distrain. Commoners. Hall V. Harding. There is an important distinction between a distress for rent and a distress damage feasant ; for in tlie former case a man may distrain any cattle whicli he finds upon the premises, hut in the latter they must he admlhj doing damage. Another distinction is that, in the case of damage feasant, the party aggrieved, or his agent, may distrain in the night-tinip, for " otherwise it may be the beasts will be gone before he can take them " {(■). The owner of the soil, although he has no interest in pasture or herbage, may distrain cattle damage feasant in respect of injuries committed by theii' destroying plants or trees in which his interest still continues (/'). But the remedy is not confined to the mere owner of the soil upon whicli the beasts may be found : it extends to all persons who are entitled to the use or produce of the land, and may therefore receive injury from the damage. So where A. demised to B. the milk of twenty- two cows to be provided by A., and to be fed at A.'s expense on certain closes belonging to A., and A. covenanted that B. might tm^n out a mare, and that no other cattle should be fed there ; it was held that the separate herbage and feeding of those closes passed to B., and that B. might distrain other cattle of A. doing damage there {g) . So also com- moners, who are entitled to the use and produce of the land, may distrain damage feasant whenever their rights are injured (A), and whenever cattle are put upon the common without any colour of right. This is well illus- trated in the case of Hall v. Harding (/) , in which case it is laid down that whenever there is a colour of right for putting in the cattle, a commoner cannot distrain ; because it would be judging for himself in a question that dejoends upon a more competent inquiry. But where cattle are put (e) Co. Litt. 142a. (y) Hoskins V. Robins, 2 Saund. 328. (y) Burt V. Moore, 5 T. E. 329. {h) 1 Roll. Abr. 405; Mary's Case, 9 Co. Rep. 112b; Bullen, 228. (0 4 Burr. 2432. DISTRESS DAMAGE FEASANT. 299 on the common without any colour or pretence of right, Part I. the commoner may distrain for them, and therefore he may _JI^;P_ __ distrain the cattle of a stranger. And a claim of a custom '; Colour of from time immemorial tliat cattle upon adjoining commons ° strayed from one to the other, is a sufficient colour of right to deprive a commoner of one common of the remedy of distress against trespassing cattle of a commoner of the adjoining common, even althougli the latter has smx-harged his own common (/<•). AYe have already ref en'ed to the cases in which one com- moner has the right of distraining upon heasts found upon a common (/). A commoner can, however, rarely distrain the cattle of his lord, except by special custom (ni). If cattle arc agisted by the lord, and improperly put Agistment of upon the common, the commoners may distrain them as [^^^^ ^ ^ the cattle of a stranger (n). But they cannot do so where the lord has any pretence of right for putting on liis own cattle, and the number which he has to put on is not abso- lutely stinted, although he may have been guilty of a sur- charge (o). If the right of common be for cattle levant and couchant upon the owner's land, another commoner cannot distrain for surcharge, but must try by a jury the number accom- modated to the land ( p) . A right of distress may be given, it seems, by agreement Right of dis- between commoners by which they agree to restrain the Jiv^enbT exercise of their pri\ileges to certain specified portions of agreement the common field, or for a certain time ; for the commoner commoners, who enters into such an agreement renders himself a {k) Cape V. Scott, L. E. 9 (») 30 Edw. III. c. 27. Q. B. 269. See also Dixon v. (o) Hodesdon v. Gresil, James, 2 Lutw. 1238. Yelv. 104; Bullen, 229; Hall {I) See ante, p. 64. v. Harding, 4 Burr. 2431. {m) Kinrick v. Pargiier, {p) Bl. Eep. 674 ; Bullen, Yelv. 129; 1 Eoll. Abr. 405, 229. ^eeal&o Dixon y. James, 406; Burt v. Moore, 5 T. E. 2 Lutw. 1241; Ellis Y. Eowles, 335 ; Bullen, 228, 229. Willes, 638. 300 DISTRESS DAMAGE FEASANT. Concurrent possession of land to take profits of a special nature. Part I. stranger to the land, and liis cattle, if found tliere, may be Chap. IX. distrained {q) ; but the cattle must actually be upon the distrainor's parcel (r). If two persons are possessed of adjoining closes, neither being under any obligation to fence, each must take care that his cattle do not enter the land of the other. But if two persons have the concurrent possession of land, for the purpose that each may take profits of a special nature, and distinct from, but not inconsistent with, the right of the other (as where A., having the exclusive right of digging stones, distrained the cattle of B., who had the exclusive right of depasturing his cattle there, as damage feasant for having broken the stones), it is doubtful whether either party is bound to guard against casual damage which during, and by the fair enjojTiient of, his right may hap- pen to the other ; but clearly the one cannot distrain the cattle of the other damage feasant, the remedy, if any, being by action, not distress (.v). So also, turves laid on a common {t), or tithes set out and not removed (?<), may be distrained damage feasant. If cattle be put into a man's pasture for a week, and he after- wards give the owner of them notice that he will keep them no longer, if they are not removed, he may distrain them as damage feasant (.r) . A tenant holding over after the expiration of his term cannot lawfully distrain the landlord's cattle put ujion the premises by way of taking possession (//). Cattle carried Every person has of common right a liberty of carrjdng fair.^^ ° l^is goods to a public fair for sale, and consequently such goods whilst at the fair cannot be distrained damage (^) Whiteman v. King, 2 H. Bl. 4. (r) 1 Eoll. Abr. 665. (s) Churchill v. Evmis, 1 Taunt. 529. (f) BrownhaU v. Norton, Sir T. Jones, 193. (m) BakerY. Leathes,'^\g\i.i- wick, 113. (.r) Noy's Maxims, 33; Bid- len, 231. (y) Taunton v. Coster, 7 T. E. 431 ; Butchery. Butcher, 7 B. & C. 399. DISTRESS DAMAGE FEASANT. 301 feasant by the owner of tlie soil and fair (c) ; neitlier can Part I. tlio distress be taken on the liighway {n) . Chap. IX. The right of making or authorizing a distress damage ^7J^^°^ ^ feasant seems to depend upon the possession of the land on damage which the injury is done. So, if a distress damage feasant ^jg^madeor^ be made in respect of a right of common of pasture, to authorized, which two tenants in common are entitled, the distress should be joint ; for it is made in respect of their joint possession, and not of their several estates (/>). And where it is made in respect of their several estates, as for damage feasant on land to which tv/o tenants in common are entitled, although neither of them may dis- train alone, yet he must avow in his own name and make cognizance as bailiff of his co-tenant (c). In the case of damage feasant no importance is to be No import- attached to the fact of ownership with regard to the things ^ the^'fect of doing the damage. The law recognizes no exemption ownership, with regard to the ownership or nature of the things dis- trainable ; so, that if cattle be trespassers upon the land, they may be distrained damage feasant, although they came on to the land without their owner's knowledge or consent, or by the default of another (d). So, also, as a distress damage feasant is made for the injury sustained by reason of the very thing distrained, it necessarily follows No exemption that no kind of thing which can be taken damage feasant excTpt in'"""'^ can be exempted from distress, wdth one exception, of which things in 1 1 T ^ l^ • • ,1 actual use. we nave spoken above, namei}^, things m actual use, as a horse on which a man is riding [e). The reason for this ■we have given before, namely, that an attempt to distrain (;:) Austin v. Whittred, Ehz. 530 ; Bradby, 138. For Willes, 623; Launccstoji' sense, Forms of Avowry iu damage Gro.'Eliz. 75; Leadetihall 3Iar- feasant, see App. B. (29) & kef, 2 Ld. Eaym. 1589. (30). (o) 52 Hen. III. c. 15; Lyotis (d) 1 Eoll. Abr. 665. V. Martin, 8 A. & E. 513. (e) Hoskins v. Robins, 2 ib) Culley V. Spearman, 2 Saund. 328 ; Storey v. Robin- H. Bl. 386. &on, 6 T. E. 138; 9 Vin. Abr. (c) Willis V. Fletcher, Cro. 121, Distress A. pi. 4. 302 DISTEESS DAMAGE FEASANT. Part I. Chap. IX. To what this exemption extends. Cattle tres- passing by owner's neorligence. tilings under sueli circumstances would probably lead to a breach of the peace (/). This exemption extends not only to the horse on which a man is riding, but also to the harness and the other things which are in actual manual use. In such a case it is not necessary for the person whose property is distrained to aver tliat " the peace was endangered," nor that the things taken were "in manual use." It is sufficient to state that they were " in the actual possession of the plain- tiff, and then under his personal care, and were then being actually used by him " (g). So if ferrets and nets in a warren be damage feasant, a distress on them is good ; but if they are in the hands of a man they cannot be distrained (h). Again, it is said in another case that " if men are rowing upon my water and endeavouring with their nets to catch fish in my several piscary, I may take their oars and nets and detain them as damage feasant to stop their further fishing, though it seems I may not cut their nets" (i). But where a clog was distrained damage feasant in a close, and it appeared that the dog when taken was in the actual possession of the plaintiff's son and his servant, and then under the personal care, and being used b}^ the servant ; it was held that this was insufficient as applied to a dog to show such use of it as exempted it from seizm-e, Patteson, J., saying "that it would have been sufficient if the dog had been proved to be within sound of the servant's whistle when it was taken" (/.■). Where beasts escape and come upon land by the negli- gence or fault of their owner, and are trespassers there, (/) Ante, p. 139. ((/) Field v. Adcmies, 12 Ad. & Ell. 649. But see Wagstaff V. Clark, Camb. Summ. Ass. 1826. (A) Hargreaves' Co. Litt. 47. (/) Reynell v. Campernoon, Cro. Car. 228. {k) Bunch V. Kennington, 1 Q. B. 679. DISTRESS DAMAGE FEASANT. 303 tliey may Lo distrained immediately hy the landlord for Part I. rent in arrear(/). But where tlie cattle of a stranger ^hap. IX. stray into the land without their owner's knowledo:e or Defect of default through defective or insufficient fences, which the ^"^^■''" tenant or his landlord ought to repair, they cannot be dis- trained by the lessor for rent reserved, until they have been h-tant ami couchant on the land ; that is, they must be Cattle levant " lying down and rising up on the premises for a night ^^*^ couchant. and a day without pursuit made by the owner of them," and until actual notice has been given to the owner, and he has refused or neglected to drive them away [m). This privilege seems to be given because it is the fault of the lessor that the damage has ]iappened, for if the land were in his own possession he sliould have kept the fences in repair, and if they were in the possession of a lessee he should liave obliged him to repair by covenant {n). Where cattle passing along a public highway stray into Obligation of an adjoining field through defective fences, the owner of r^ove*stray- tlie cattle is bound to remove them within a reasonable ing cattle, time, until the expiration of which they cannot lawfully be distrained damage feasant. So where cattle of the plaintiff were being driven along a road in the dark, and some of them strayed into the defendant's field through a gap in the fence, and the driver went on ■s\-itli the rest and put them into a place of safety, and then retm-ned to take those which had strayed (but which the defendant had by that time distrained) , the defendant in an action of tres- Time when pass for the taking pleaded that he had distrained the be*removed. cattle damage feasant, and that he had not distrained until a reasonable time had elapsed to remove them; it was held that a " reasonable time " meant not merely a reasonable time for the act of removal, but what was {I) Gilbert on Distress, 45; (m) Bullen, 103; Poole v. Co. Litt. 47a, n. 301 ; Keynp Longueville, 2 Saund. 289. V. Cruwes, 2 Lutw. 1573. (n) Ke/npy. Cniwes,2JjXLtw. 1573. 304 DISTRESS DAMAGE FEASANT. Part I. reasonable under all the circumstances of the case, and Chap. IX. jT^^j^ ^]^'g .^jjg £qj, ^y^q j-jjjy. Iq determine (o) . Obligation of Where a plaintiff occupied land adjoining a river, and Wes ia ^^'^ on the other side the defendant occupied land which he repair. -^.^s bound to fence, but from his neglect to fence it the plaintiff's cattle escaped into the defendant's close, and afterwards from that close orer a good and substantial fence into an adjoining corn field of the defendant ; and the defendant distrained the plaintiff's cattle in the corn field as damage feasant : it was held, that the cattle having first escaped in consequence of the defendant's neglect to fence the first field, he could not distrain the cattle when they escaped over the sound fence into the corn field ; Pollock, C. B., remarking, " When any wrong is done, or damage sustained, the law inquires — when was the first wrong done ? Who was the cause of first setting it in motion ? Or what was the origin of the mischief ? " and Bramwell, B., observing, " It is conceded that, according to the autho- rities, if the plaintiff's cattle being by the defendant's default in his land liad escaped therefrom into the close of a third party, and had there sustained an injury, the plaintiff could maintain an action against the defendant ■ for damages in consequence of the injury, and on that ground, to avoid circuity of action, tlie defendant should not be at liberty to impound the plaintiff's cattle damage feasant, and then leave the plaintiff to a cross action against him for the injury sustained by the impounding. No man should complain of another's act, when it is the immediate result of his own neghgence" (p). But where the plaintiff was the occupier of a field which was separated from the defendant's field by a hedge, and for the last fifty years the defendant's predecessors had repaired this hedge, and in consequence of the fence being out of repair the plaintiff's cattle strayed into the defen- (o) Guodwin v. CheveJey, 4 {p) Sincjletony. Williamson, H. &N. 631. 7H. &N. 410. DISTRESS DAMAGE FEASANT. 305 dant's field, wlio seized them as a distress damage feasant ; Part I. it was held, that there was no liabiHty on the part of the ^^a-P- IX. defendant to repaii- the fence, and, therefore, he was em- powered to distrain damage feasant {q). For a man is only bound to take care that his cattle do not wander from liis own land and trespass on the land of others. He is under no legal obligation to keep up fences between adjoining closes of which he is owner (r). In order to The animal justify the distraining of an animal damage feasant, the actual damao-e animal must be actually doing the damage at the time, at the time. In fact, it nuist be taken in the act ; or, having done some damage, it must be necessary to detain it in order to pre- vent its doing fiu'ther damage. So that if the owner of the freehold seizes an animal, whieli has done damage to the freehold, but which has ceased doing so, and it is not necessary to detain the animal to jirevent fm-ther damage, and the owner of the freehold detains the animal and feeds it for several days, and then sells it for its value, the owner of the animal is entitled to recover the full value of the animal, without any deduction for the feeding, as the owner of the free- hold seized the animal in his own wrong («). So, also, beasts can only be distrained for the damage done at the one time when they are distrained ; so that if they trespass on the land one day, and then go off without being seized, and trespass on it again the next day, and are then taken, they cannot be detained for the damage done on both days ; but only for that done on the day on which they were distrained (/). And each beast can be seized and detained for the damage which has actually been done by itself only, and {q) Hilton v. Hankesson, 27 (s) Wonner v. Biggs, 2 C. L. T.N. S. 519. &K. 31. (/•) Boyle v. lamlgn, 6 B. (t) Vaspor v. Edioards, 12 & C. 329. Mod. 660 ; Co. Litt. 161 a. O. X 306 DISTRESS DAMAGE FEASANT. Part I. not for the general damage, or any part of it, whicli lias Lhap. lA.. ]jQQj^ done by others (u). If the cattle are once off the land they cannot be taken, even on fresh pursuit (x) , although they may have been driven off the land pm-posely to avoid the distress, and within the view of the person coming to distrain them (y) . The distress, however, will be justifiable if the distrainor actually entered upon the land whilst the cattle were in(;:). But if it appear that the party distraining had not actually got into the locus in quo before the cattle had got Second dis- out of it, the justification cannot be supported (r/) . The tress of cattle. ,,^ ^ t i • i n i • j" same cattle may be distrained a second time lor a new injury where they are caught trespassing again sub- sequently to a distress, even though they were replevied after the fii'st {h). Remedies. Whenever a distress damage feasant may be made, an action of trespass may be maintained for the same griev- ance, and the form of remedy is at the election of the party injm-ed; but both remedies cannot be pursued at the same time, for " nemo debet bis vexari pro eadem causa. ''^ And the adoption of one is an entire waiver of the other {b). If, however, cattle distrained damage feasant escape from the poimd, or die without the fault of the distrainor, his remedy by action for the trespass still remains {e) . But if the escape of the beasts is the faidt of the distrainor, he is not entitled to an action of trespass [d). Where seven horses are distrained damage feasant, and impounded, and supplied with food, and two of them were (?<) Vaspor V. Edwards, {b) Bullen, 234. supra. (c) Williams v. Price, 3 B. {x) Id. & Ad. 695; Vasporr.Edivards, (V) Co. Litt. 161 a. 1 Ld. B.ajm. 719; Bac. Abr. (z) Cleme7it v. Milner, 3 Distress, F. 1. Esp. 95. {d) Bull. N. P. 84 ; Cas. (o) Id. temp. Holt, 257. DISTRESS DAMAGE FEASANT. 30) sold under the statute 5 & G Will. IV. c. 59, s. 4, and the Part I. jDroduce was applied in discharge of the value of the food P" and expenses ; it was held that as the statute authorizes the party to sell only so many animals as may be necessary to indemnify liimself, he ought to have shown that it was necessary to sell more than one horse ; for the party selling must exercise a reasonable discretion, and act bond fide {e). A distress of things damage feasant may be made as a Distress by distress for rent, either by tlie person aggrieved by the Srieved^^r tresjaass, or by his bailiff or agent (/) . Where a horse ^^ agent, was proved to have been wTongfuUy distrained by the defendant's servant on the highway, and not on his land ; it was held tliat no prii/ui facie case was made out, and that the defendant had authorized the distress in question by proof of his liaving, on other occasions, autliorized his servant to distrain cattle damage feasant on his land {(/) . No particular form of notice is required in making the distress. The cattle or things seized should be driven to Poimd. be impounded ; and the same rules with regard to the pound, whether overt or covert, and to the supply of food to the beasts whilst in the pound, must be observed as in a distress for rent {//). A distress of things damage feasant being still, as at common law, merely a pledge for the redi'ess of the injury sustained, cannot be used or disposed of for the benefit of the distrainor. Neither the statute 11 Greo. II. c. 19, Abuse of the s. 19, nor the statute 2 Will. & Mary, sess. 1, c. 5, s. 2, '^^'*'"^''- extend to distresses taken damage feasant. So that any abuse of the distress makes the distrainor a trespasser ab initio («') ; and, also, in no instance can a distress taken damage feasant be sold as a satisfaction for the wrong done. (e) LaytoiiY. Hurrij,9>Ql.'Q. (A) A7rte, pp. 229 et seq. 811. (^) Bagshaw v. Goward, (/) Bullen, 237. Cro. Jac. 147 ; Gargrove v. Ig) Lyons v. Martin, 8 A. Smith, 1 Salk. 221. &E. 513. x2 308 DISTRESS DAMAGE FEASANT. Part I. Chap. IX. Distress damage feasant after tender of amends. As to impounding. Even when sold under the statute 5 & 6 Will. IV. c. 59, s. 4, in order to defray the expenses of food supplied to the animals, nothing can he retained in respect of the damage for which the distress was made, the statute directing all the overplus beyond the value of the food and expenses to be returned to the owner of the cattle {k) . If the distress is not sold under this statute it may be detained for any length of time until satisfaction is made, or the owner replevies it (/). The same rules with regard to a tender of amends apply to the case of a distress damage feasant as in that of a distress for rent (m). So that a distress cannot be made after a tender of amends before the taking, nor can it be detained if a tender be made after the taking, and before the impounding. But offer the impounding a tender comes too late to make either the taking or detainer un- lawful {)i) . The same rules also apply as to the person to whom the tender is to be made ; although from the natui'e of the two causes of distress, and the position of the persons usually employed, a bailiff distraining things damage feasant is not so likely to be invested with authority to receive the tender as one distraining for rent (o) . As to what is such an impounding that the tender comes too late, it has been held that where cattle distrained damage feasant are in a private pound, and the distrainor admits that they were about to be forwarded to a public (k) Mason v. Neicland^ 9 C. &P. 575. (Z) Bullen, 239. (m) Ante, pp. 291 et seq. Also per Patteson, J., in Ladd V. Thomas, 12 Ad. & Ell. 117. (») Six Carpenters^ case, 8 Co. Pep. 147; Thompson v. Jackson, 1 Man. & G. 242; Sheriff Y. James, 1 Bing. 341; Gulliver Y. Cosens, 1 C. B.788; Lindon v. Hooper, 1 Cowp. 414; Knihhs v. Hall, 1 Esp. 84 ; Skeate v. Beale, 1 1 Ad. & E. 983 ; West v. Nihhs, 4 C. B. 172; Singleton Y. Williamson, 31 L. J. Ex. 17; Ladd v. Thomas, 7 H. & N. 747 ; Ans- comb V. Shore, 1 Taunt. 261. (o) Bullen, 236. DISTRESS DAMAGE FEASANT. -309 pound, a tender of amends made whilst they were in the Part I. private pound was held not to be too late {p). And where ^^^P- J-^- the plaintiff's bull trespassed on the defendant's land, and the defendant immediately impounded the bull on his oicn 2)remiscs and refused to receive the sum of eighteenpence (which the plaintiff tendered to him as soon as he dis- covered that tlie bull was impounded), or to give up pos- session unless the plaintiff paid him 2/. (which he accord- ingly did under protest) ; it was held that he could recover the difference (namely, 11. 18s. Gd.) ; for that if a person distrains cattle damage feasant upon /lis own premises, and the owner tenders the whole amount of damage at once, or as soon as he has an opportunity of doing so, the tender is not too late in order to be accepted by the distrainor; Hawkins, J., observing : "An animal in a public poimd Distinction is in the custody of the law, and in that case I can well public and understand it being argued that the person who sent the pn^ate animal to the pound would have no power to release it upon tender of the full amount of damage. Here the bidl was in aj^rirafe pound, that is to say, in a shed on the defendant's land ; and the defendant need not have done anything but take the amount tendered for the damage (which was amply sufficient), open the door of the shed, and let the bull out. There is a wide difference between releasing the bid.1 under those circumstances, and releasing him after he had been sent to a public poimd"((7). We intend to treat upon the remedies for things taken Eemedies for wrongfully as damage feasant hereafter, with the remedies di.X^°" f given for a ^^Tongful distress for rent (/•). thing-s It will be seen that if the distress be taken wrongfully feasant. as damage feasant, the owner may rescue it, or may have a remedy by rej)levin, trespass or trover. The action for illegal distress may be brought against the bailiff making (p) Broivne v. Poicell, 4 (y) Green v. Duckett, L. E. Bing. 230. 11 Q. B. D. 275. (/•) See post, Chap. XI. 310 DISTEESS DAMAGE FEASANT. Part I. it, or tlie o^\Tier of the land wlio autliorizes it (if lie can be Chap. IX. charged), or against both (.s). Where to an action for taking the plaintiff's horse, the defendant pleaded that the horse was damage feasant on his land, and the horse was proved to have been wi-ong- fully distrained by the servant of the defendant on the highway, and not on his land ; it was held that no immd facie case was made out that the defendant had authorized the distress in question by proof of his having on other occasions authorized his servant to distrain cattle damage feasant on his land, and that he had not adopted the act of his servant by i^leading a justification of it (/). And where the defendant justified that he was lawfully pos- sessed of a certain piece of land, and that he took cattle there damage feasant, the plaintiff was allowed to reply that he had a right to the possession of such piece of land, because a third party had a title to the land, and he entered on it as his servant, and by his command («). Where only one part of a distress, as one of several beasts, has been abused, the distrainor becomes a trespasser ah initio as to such part only (x). (s) BuUen, 241. As to re- & E. 513. plevin iu case of distress for (u) Taylor v. Eastwood, 1 damage feasant, see j^ost, East, 212. p. 347. {jc) Per Holt, C. J., iu Dodd (t) Lyons V. Martin, 8 A. v. Jloryan, 6 Mod. 215. 311 Part II. REMEDIES FOR WRONGFUL DISTRESS. CHAPTER X. OF RESCUE AND POUND BREACH. Rescue, or " re$cow.s"(«), is "tlie forcible taking away Definition of by the owner or other person of things distrained before ^^^°"^- they are impounded from the custody of the distrainor." It is also defined by Lord Coke to be "a taking away and setting at liberty, against law, a distress taken or a person arrested by the process or com-se of law"(i). If the distrainor has never been in the possession of the goods, as by his attempting to distrain and being pre- vented or distm^bed in doing so, there is no rescue. But where some brewers let a public-house under an agree- ment which gave them all the remedies of landlords for rent against the tenant's effects for the recovery of any book debts for liquors sold by them to him, and on rent being in arrear they sent their baihff who found an auc- tioneer on the premises under an execution, whereupon he showed him his warrant, took an inventory and made a valuation, and in disregard of this distress the tenant and the auctioneer proceeded to sell the goods, the auc- tioneer knocking them down and the tenant handing them to the pui'chasers; it was held that though the plaintitfs had not such a possession as to enable them to sue for a conversion, they could maintain an action for a rescue (a) It is called " rescous," (b) Bull. N. P. 84 ; Co. from recourser {recuperare — Litt. 160 ; Bullen, 206. to take from, or recover). 312 OF RESCUE AND POUND BKEACII. Part II. against the auctioneer for knowingly assisting in trans- LJiap. A. fgppij2g fi^e dominion and property in the goods seized to the resj)ective purchasers (c). Rescue in There may be a rescue in law as well as in deed. So where cattle distrained go upon the premises of the owner whilst being driven to the pound, and he refuses to deliver them up upon demand by the distrainor, this was held to be rescue in law {d) . But where the plaintiff distrained the defendant's cattle damage feasant, and went to apprise the defendant, and dui'ing his absence the cattle escaped for half an hom^ into the defendant's ground, fi'om whence the plaintiff on his return drove them to his own yard, the defendant was not guilty of a rescue for taking them from thence, as the leaving the cattle in the defen- dant's ground was an abandonment of the distress (e). So if a man takes cattle which are straying in a common or lane, and they are rescued as he is taking them to the poimd, this rescue is wrongful ; but if he takes cattle which are damage feasant in the enclosed lands of a pri- vate occupier, the rescue of them before they get to the pound is not wi'ongfid, as in this latter case till the cattle get to the pound he is considered to bo the mere servant of the occupier (/') . Poundbreach, Pound breach is "the breaking the pound, or any part definition of. fj^ereof, or retaking the things distrained after they are impounded; " for as soon as the distress is imj^ounded in any lawful pound, whether off or on the premises, it is, as we have seen, in the custody of the law, and cannot be retaken v^ithout the party being guilty of a pound breach (g) . Actual force It seems that actual force is not necessary to constitute not necessary. (c) Iredale v. Kendall, 40 (y) Hex v. Bradshaio, 7 C. L. T. N. S. 362. & P. 233. (f/) Co. Litt. 161 a. {g) Bullen, 206; Ahcayes (e) Knoicles v. Blake, 5 v. Broome, 2 Lutw. 1262. Bing. 499. OF RESCUE AND POUND BREACH. 313 tlie offence of pound breach ; for where an attorney, Part II. assuming an authority to grant a replevin when he had v-aap. A. none, granted a replevin in his own cause, he was con- sidered guilty of a pound breach (//). Where a bailiff in possession of goods under a landlord's distress received a f, fa. from the sheriff, and sold the goods under it, the sheriff was held to be liable in an action of pound breach at the suit of the landlord (/) . And when the plaintiff, being the owner of a piano, lent it to A., whose landlord seized it under a distress for rent, and the landlord remained in possession of the piano for a fortnight, when the sheriff's officer seized it under an execution against A., and removed it to the premises of an auctioneer, who afterwards sold it ; it was held that though the plaintiff might maintain an action of trover against the auctioneer, the landlord could not, his remedy being for pound breach against the sheriff's officer (A-). But where the plaintiff le\ded a distress for rent in arrear, and impounded the goods on the premises, and whilst his bailiff was removing them the sheriff's officer came into the house and said that he had a fi. fa. against the plaintiff, and that he would not allow the goods to be removed, and the plaintiff's tenant thereupon ejected the plaintiff's bailiff, and brought back the goods which had been re- moved ; it was held that these facts were not sufficient to entitle the plaintiff to maintain an action for a pound breach or rescue against the sheriff's officer (/) . Where a distress is altogether T\Tongful the party may Rescue before lawfully make a rescue of it before it is impounded ; as "^P^^^ "^o" where the distress is made for something else than rent, or for rent which is not really due, or after sufficient tender, or in the night-time (except in the case of damage feasant), (Ji) Trevannioii's case, 11 {k) Turner v. Ford, 15 M. Mod. 32. & W. 212. (?) lieddelly. Stoicey, 2 M. {I) S f or ei/ Y.Fintiis, 6 Yixch. & Eob. 358. 123. 314 OF RESCUE AND POUND BREACH. Part II. or on the highway, or where it is wrongful as to a part ; Chap. X. j^g where, in making a lawful distress, the distrainor takes things absolutely privileged at common law or by statute, or beasts of the plough, or imj^lements of trade, where there are other distrainable goods on the premises, or where the distress (before it is impounded) is unlawfully detained after tender of the arrears of rent due, and the charges of the taking (m) . By whom it Bescue must be made by the tenant or owner of the may be ma e. g^^^^ ^y J^imself or by his agent or servant, and not by a stranger, who can have no right to dispute the distress {71) . Therefore, if the goods of two persons are wrongfully seized in one distress, each person can only rescue his own goods, being a stranger to the remainder of the distress ; but the one may justify as the servant of the other (0). Abandonment of the distress. Abuse of the distress. Whenever the distrainor abandons and quits possession of the distress, the retaking of it by the tenant or owner is not a rescue (p). But if the distress has been impounded, the party cannot justify a breach of the pound to take it out, because the distress is then in the custody of the law (q). But if a distrainor abuses a distress, as by taking horses out of a pound and working them, or attemj)ting to kill sheep distrained, the owner may interfere and prevent this abuse ; and no action can be maintained against him for pound breach or rescue (r). We have already seen how, by the 12 & 13 Yict. c. 92, (m) Bullen, 207 ; Six Car- penters^ case, 8 Co. Hep. 146 ; BeviVs case, 4 Co. ~Rq^. lib; Co. Litt. 47 b and 161 a; 9 Co. Eep. 23 b; Keen y. Priest, 4 H. & N. 240 ; Firth v. Pur- vis, 5 T. E. 433. (n) Bro. Abr. Eescous, pi. 7 and 12 ; Eoll. Abr. 673. (o) Jennynys v. Playstoice, Cro. Jac. 568 ; Bullen, 208. (/j) Bodcl V. Morgan, 6 Mod. 216. (§') Cotsicorth V. Bettisoti, 1 Ld. Eaym. 105. (r) Stnith v. Wright, 6 H. & N. 821. See also Co. Litt. 100 a; Tresham^s case, 9 Co. Eep. 110 b. OF RESCUE AND POUND BREACH. 315 s. 6, a person may enter a pound in order to supply Part II. the beasts therein with sufficient food on finding them Chap. X. neglected or starving without being liable to an action of trespass (s). At common law the remedy for an unlawful rescue was Remedies for an action of tresj)ass and assault upon the distrainor and rescue or bailiff ; trover could not be maintained for it {(). poundbreach. A rescue and a pound breach might be included in one action of trespass ; as also might several distresses for several rents (u). AVliere a warrant of distress for a rate which did not specify the time at which the distress was to be sold was held bad, a rescue of a distress taken under such a waiTant was no criminal offence (c). The person entitled to the remedy was he in whose right Who is en- the distress was made ; therefore, if the distress were taken remedy? ^ by the bailiff and rescued, the landlord, and not the bailiff, shoidd bring the action ; and he might recover not only for the rescue, but also for the battery of the servant and loss of service (;r) ; excejjt in the case of a distress by the Exception in Crown, where the bailili making the distress is personally q^^^ ^ entitled to the remedy, and not the Crown (^) , The offence of pound breach was a still higher offence at common law than that of an unlawful rescue ; for if a man broke the pound, or the lock of it, or any part of it, he " greatly offended against the peace, and committed a trespass against the King, and to the lord of the fee, the sheriffs and hundredors in breach of the peace, and to the party in delay of justice. So that even hue and cry might be raised against the offender, as against those who broke the peace, and the party who distrained might retake the (s) Anfe, p. 232. (f) Ee(/. v. Williams, 19 \t) Moneux V. Goreham, 2 L. J. M. C. 126. Selw. N. P. 9th ed. 1384; i?ea; {x) Alwayes v. Broome, 2 V. Cotton, 2 Yes. sen. 288. Lutw. 1263. (») BuUen, 209. (y) Bullen, 210. 316 OF RESCUE AND POUND BREACH. Remedy at common law Part II. goods again wherever lie found them, and again impound <^^^P- X- them"(~). But in the latter case he could not break open the house, or enter the grounds of a third person for that purpose, unless on fresh pursuit ; and he could not be guilty of any breach of the peace in such recaption (a) . The usual remedy for this injury at common law was also an action of trespass, brought by the person in whose right the distress w^as made, not by the bailiff who dis- trained, nor the pound keeper, or general owner of the pound. It is important to state the old common law remedy of trespass for rescue and poimd breach, because that is the only remedy which the party can have in a case of distress damage feasant, as the statute 2 Will. & Mary, sess. 1, c. 5, which we are about to give, applies only to distresses made for rent. By this statute, which is the most useful remedy at the present day for a rescue or pound breach in the case of a distress for rent, it is provided by sect. 4, "that upon any pound breach or rescous of goods or chattels distrained for rent, the person or persons grieved thereby shall in a special action on the case recover treble damages and costs against the offender, or against the owner of the goods, if they be afterwards fomid to come into his use or possession." It is no defence to an action on this statute that the defendant made a tender of the rent and costs after the impounding (b). As we have seen, an action of trover is not maintainable by the landlord for goods distrained by him, as he has neither any property in them, nor the constructive posses- Treble costs sion of them. It has been decided that the word " treble " 2 wm. & Mary, sess. 1, c. 5. Treble damaK (;:) Co. Litt. 47 b, 160b; Woodf all's L. & T. 12th ed. 453; BuUen, 211. (rt) Etch V. WooUey, 7 Bing. 965 ; Co. Litt. 47 b ; Harg. n. 303. {h) Firth V. Purvis, 5 T. E. 432. OF RESCUE AND POUND BREACH. 317 in the above statute refers to the costs as well as the Part II. damages, and, therefore, " treble costs " might be given. C^hap. X. But " treble costs " are now abolished by the statute 5 & 6 now abo- Vict. c. 97, which by sect. 2 repeals all pre\'ious statutes giving double or treble costs, and pro\ddes that instead of such costs the paiiies entitled thereto shall recover " such full and reasonable indemnity as to all costs and charges incurred in and about any action, &c., as shall be taxed by the proper officer in that behalf" (c). In an action for rescue of goods distrained for tolls imder the authority of a statute, whicli gives a right of distraining for particular goods only, it must be shown that the goods taken were such as the plaintiffs were empowered to distrain ; but this need not be done in the case of pound breach, because the goods are in the custody of the law, and the defendants have no right to retake them {(I). In an action for pound breach the allegations that the premises on which the goods were seized and impounded were held by the plaintiff as landlord, and that the rent was in arrear, are material allegations, because they show how the plaintiff is the person aggrieved by the pound breach (c). The statute 6 & 7 Yict. c. 30, which amends the law To what the relating to pound breach and rescue in certain cases, does ^ '^^ extends not extend to distress for rent, but applies only to distress of cattle damage feasant. By sect. 1 of that statute, after reciting that it frequently happens that cattle which are lawfully impounded, or which are la^-fully seized for the purpose of being impounded, are rescued from the pound or place in which they are so impounded, or on the way (c) As to whether this Act ture Acts, 4th ed. p. 527. is repealed or not, see Garnett [d) Parrott Navigation Co. v. Bradley, L. E. 3 App. Cas. v. Slower, 6 M. & W. 564. 970; and Eules of 1883, Ord. (e) Berry v. Huckslable, 14 LXV. r. 1 ; Wilson's Judica- Jur. 718. 318 OF EESCUE AND POUND BREACH. Part II. Chap. X. Release of cattle, &c., from the pound. Damage to pound. Penalty. to or from such pound or place, and the expense of prose- cuting such offenders, or obtaining redress for the injury occasioned by such rescue to the person so entitled to dis- train is usually out of proportion to the damage for which such cattle are distrained, it is enacted that " in case any person or persons shall release or attempt to release any horse, ass, sheep, swine, or other beast or cattle which shall be lawfully seized for the purpose of being im^jounded, in consequence of having been found wandering, straying, or lying, or being depastured on any enclosed land without the consent of the owner or occupier of such enclosed land, from the pound or place where the same shall be so im- pounded, or on the way to or from any such pound or place, or shall pull down, damage, or destroy the same pound or place, or any part thereof, or any lock or bolt belonging thereto, or with which the same shall be fastened, every person so offending shall, upon conviction thereof before any two of her Majesty's justices of the peace, for- feit and pay any sum not exceeding ol. together with reasonable charges and expenses, or in default thereof be committed by such justices by warrant under their hands and seals to the house of correction of the county wherein the said offence shall have been committed, there to be kept to hard labour ; and it shall be lawful for the said justices to award the whole or any portion of such penalty to the person or persons on whose behaK such cattle were distrained." An information was laid against certain persons for having unlawfully released certain cows, heifers, and bullocks which had been lawfully seized for the purpose of impounding. The justices, holding that the bullocks, &c., were not included in the words "other beasts or cattle " in this section, dismissed the complaint on the ground of their want of jmisdiction. A rule nisi for a mandamus ordering them to hear and determine the matter having been obtained ; it was held that it must be OF RESCUE AND POUND BREACH. 319 made absolute, as the justices had improperly declined Part II. jurisdiction under the statute in question (/). Cnap. X. By sect. 2 it is provided, that " Nothing herein con- Ousting of taincd shall authorize any justices of the peace to hear jurisdiction, and determine any case of pound breach or rescue in which any question shall arise as to the title to any lands, tenements, or hereditaments, or any interest therein or accruing therefrom, or as to any bankruptcy .... or any execution under the process of any com-t of justice, or as to the obligation of maintaining, repaiiing, or keep- ing in repair, any wall, hedge, paling, ditch, sunk fence, or fence whatsoever " (). And again, Damages a pawnbroker was held entitled to recover the full value of ^^°'^'^^^ *^- goods pledged with him and distrained by the landlord for rent, and not merely the amount which he had advanced on them (/). In one case, where a distress was void ab initio by "UTiere dis- tress is V ab initio. bailiffs entering and forcibly breaking through a window, *^^®^ ^^ ^° Cockburu, C. J., remarked : " If a man imder colour of legal authority distrains, and does that which makes him a trespasser ab iniiio, he is in the same position as a total stranger would have been. And if a stranger had seized, he could not have said by way of defence that he had applied the proceeds of the goods for the benefit of the party bringing the action against him. The plaintiff has (d) Pusey v. Pusey, 1 White (e) Keen v. Priest, 4 H. & & "T. Lead. Cas. on Equity, N. 236. 5th ed. p 890, and notes (/) Swire v. Leach, 18 thereto ; 36 & 37 Vict. c. 66, C. B. N. S. 479 ; Nargatt v. s. 24, sub-s. 7 ; 37 & 38 Yiet. Nias, 1 El. & El. 439. No c. 83, 1st sclied. ; Sm. L. & deduction need be made from T. 3rd ed. 272, note (e). such value in respect of the rent due from the tenant. 322 EEMEDIES FOE Part II. Chap. XI. Trespasser ah initio as to part of tlie tiling dis- trained. Distress taken iu the high- way. Statute of Marlbridge. a liglit to say, ' I demand to be restored to tlie position I stood in "before the seizure'" (^). As we liave seen, mere nonfeasance, as refusing to retm'n a distress upon tender made after seizure, will not make the original taking, but only the subsequent detainer, WTongful (//). But Avhere a party becomes a trespasser ah iuiiio as to part of the thing distrained on, this does not make the distress void as to the rest. So where several barrels of beer were distrained for rent, and the distrainor drew beer out of one of them, it was held that this made him a trespasser ah initio as to this one only (i). And where a landlord distrained for rent due, and amongst other things seized some looms in work, there being sufficient without them to satisfy the rent, and the tenant paid the rent and the costs of the distress, iipon Avhich the distress was with- drawn altogether; it was held that the tenant was entitled to recover only nominal damages, namely, only the actual damage sustained by the taking of those particular goods, and not the whole amount paid by him. For in such a case the distrainor is a trespasser ah initio only as to the goods which were not distrainable (j). Where a distress is wi'ongful because taken in the high- way, if the party grieved seeks any fm'ther remedy than that of rescue, it must be by an action on the Statute of Marlbridge (/>•), Avhich enacts, that no "man shall take distresses in the King's highway, nor in the common street, but only the King, or his officers having sjDecial authority to do the same"; and formerly the party was (y) Attack v. Bramivell, 3 B. & S. 529 ; Nixon v. Free- man, 5 H. & N. 647; FAlmond- son V. Nuttall, 17 0. B. N. S. 280. (/i) Six Carpenters^ case, 8 Kep. 146 a ; Jacohsohn v. Blake, 6 M. & G. 919. [i] Dodd y. Jloi-ffan, GMod. 215 ; Lamont M. & W. 416. (/) Harvei/ M."& AV. 740. {h) 52 Heu V. Sou t hall, 5 V. Pocock, 1 1 3, c. 15. WRONGFUL DISTRKSS. 323 oLlIgod to take advantage of this statute iu the first Part II. instance, as he could not avail himself of it by pleading Chap. XI. it in Lar to an avo^^Ty (/). In the ease of a distress made and sold when no rent is owing, tlic OAvnor of the goods distrained has now a more complete remedy by statute than he formerly had by the common law. For the statute 2 Will. & Mary, sess. 1 , - Will. & c. 5, enacts tliat " where any distress and sale shall be c. 5, s. 5. ' made by virtue and colour of that Act for rent pretended to be in co-rear and due, where in truth none is in arrear or due, then the owner of such goods so distrained and sold, his executors or administrators, may by action of trespass, or upon the case, to be brought against the person so dis- training, or his executors or administrators, recover douhJe Recovery > f the i'((h(c of tlio goods so distrained and sold, together witli '^^ ° ^'' "^* full costs of suit" {)n). From the terms of this Act it seems that a sale must take place in order to complete the offence which it is intended to remedy. In such an action the juiy must be directed to give double the value of the goods, and cannot give nominal damages (»). Of course, in order to determine when a party is entitled to maintain an action for a wrongful distress, it must first be considered w^hether a taking, supposing it to be wrongful, Wliat is a has been really made, ^ ° We have already mentioned those cases which decide what does and what does not amount to a distress. But the exercise of a right of action and a claim to damages is not prevented by the fact that" whilst the distrainor re- mained in possession the plaintiff had the free use of his goods ; and a tenant was held entitled to recover on proving the seizure of his goods and the keeping a man in possession, without showing any further damage (o). (/) 2lust. 131; Bullen, 182. B. 715; Hoare v. Lee, 17 (m) See County Coui-tEules, L. J. C. P. 196. 1889, 0. IV. r. 1. (o) Baylis v. i^isAe/-, 7 Bing. («) Masters v. Farris, 1 C. 153. Y 2 324 REMEDIES FOE Part II. Chap. XI. Waiver of ris-ht of action. Form of in- dorsement of writ. Neither does the tenant waive his right of action hy entering into an agreement with the distrainor respecting the sale of the goods seized ; for a right of action once vested can only be destroyed by a release under seal, or by the receipt of something in satisfaction for the wrong done (p). Another reason why it is material to distinguish the various kinds of wrongful distress, is that regard should be had to the persons against whom the tenant can proceed ; for in the case of an illegal distress the action should be brought against the person actually committing the illegal act, and not against the landlord, unless it can be shown that he expressly authorized the act, or adoj)ted or ratified it afterwards {q). As has been seen before, in addition to proceeding for damages for the illegal distress the tenant may proceed in an action for retui-n of the goods, and for damages for detaining the same, or for wrongfully depriving him of the goods against the person who has come into possession of such goods ; and he will have the same rights as to the amount of damages recovered as in the former mode of action (r). So also actions may be maintained by other persons whose goods are taken who are not tenants of the landlord purporting to distrain. There is now one form of indorsement of the writ provided for all claims for damages arising from a "WTongf id distress (s) ; and this (jo) WiUoughhy v. Back- house, 2 B. & C. 821 ; Sells v. Hoare, 1 Biug. 401 . Where a tenant assigns her interest in the premises, but still remains on the premises, and the assignee does not enter, she is merely the agent of the assignee, and cannot maintain an action for illegal distress. Nash v. Lucas, 16 L. T. N. S. 610. {q) Leivis v. Head, 13 M. & W. 834 ; Freeman v. Eosher, 13 Q. B. 780; Gaunt- lett V. Kxmj, 3 C. B. N. S. 59; Haseler v. Lcmmjne, 5 0. B. N. S. 530; Hurry v. liicl- man, 1 Moo. & Eob. 126; Moore v. Drhikwater, 1 F. & F. 134; Green v. Wise, W. N. 1877, p. 130. (?•) For forms, see Jud. Act, 1875, App. A. Part III. s. 4. (s) Eules of Supreme Court, 1883, and forms thereto. WRONGFUL DLSTKESS. 325 form is stated to be sufficient, whether the distress com- Part II. plained of be wrongful, or excessive, or irregular, and ^^^^V- ^^- whether the claim be for damages only, or for double value. No specimen statement of claim or defence is given to Statement of the Appendix to the Rules of the Supreme Court. *^ ^^^' A landlord who has sold his tenant's goods under a distress for rent, and is not guilty of any misconduct with regard to the distress, is not liable in an action by the tenant to recover the overplus money in the landlord's hands as money had and received. The j^roper remedy is an action of tort against the landlord for not paying over the overplus to the sheriff piu'suant to the statute 2 Will. & Mary, sess. 1, c. 5, s. 2 (/)• If a tenant who sues his landlord for a wrongful dis- Evidence, tress does not put in the agreement for the tenancy, the jmy, as against him, may infer its terms from his own admission or his own evidence {ii). A summary remedy has been given for wrongful dis- Summary tresses within the metropolitan police district. For by metropolitan the statute 2 & 3 Yict. c. 71 (An Act for regulating the poUce district. Police Coiu'ts in the Metropolis) it is enacted, by sect. 39, that "on a complaint made to any of the said magistrates by any person who shall within the metropolitan pohce district have occupied any house or lodging by the week or month, whereof the rent does not exceed the value of 15/. by the year, that his goods have been taken from him by an unlawful distress, or that the landlord, or his broker or agent, has been guilty of any irregularity or excess in respect of such distress, it shall be lawful for such magis- trate to summon the party complained against, and if upon Summons, the hearing of the matter it shall appear to the magistrate (I) Yates V. Easttcood, 6 (?<) Coune v. Corderij^ 10 Exch. 805; Evayis v. Wiiyht, W. E. 347. 2 H. & N. 527. 326 REMEDIES FOR Part ir. Chap. XI. Order for return of tlie distress. Irregular distress. that such distress was improperly taken, or unfairly dis- posed of, or that the charges made by the party having distrained or having attempted to distrain are contrary to law, or that the proceeds of the sale of such distress have not been duly accounted for to the owner thereof ; it shall be lawful for the magistrate to order the distress so taken, if not sold, to be returned (u) to the tenant on payment of the rent which shall appear to be due, at such time as the magistrate shall appoint, or if the distress shall have been sold, then to order payment to the said tenant of the value thereof, deducting thereout the rent which shall so appear to be due, such value to be determined by the magistrate ; and such landlord or party complained against in default of compliance with any such order, shall forfeit to the party aggrieved the value of such distress, not being greater than 15/., such value to be determined by the magistrate." This enactment is permissive only, and does not prevent a tenant suing for double value in cases where he is enabled to do so. It will be observed that it is confined to distresses for rent made within the metropolitan police district {.v) ; also to cases where the rent does not exceed 15/. per annum, or the tenancy was by the week or month {>/). "Where a right to distrain clearly exists, and therefore the party exercising it is not guiltj^ of a wrongful dis- tress, he may still be guilty of conducting it in an irregular manner. Prior to the statute 11 Geo. II. c. 19, any irre- gularity in a distress rendered the distress unlawful, and the party distraining a trespasser ab initio, so that the full value of the rent for which the distress was taken might be recovered by action (:::). But this hardship upon land- lords was remedied by that statute, Avhich, by sect. 19, {u) See ante, p. 163. {x) The limits of such dis- trict are defined in. the sche- dule to 10 Geo. 4, c. 44. (y) WoodfaU's L. & T. 12th cd.'497. (;:) Six Carpenters^ case^l Sm. L.C. Sthod. 143; 8Eep. 146 a. IRREGULAR DISTRESS. 327 enacts that " wliere any distress shall be made for any kind Part II. of rent justly due, and any irregularity or unlawfid act ^ I^' • shall be afterwards done by the party or parties distraining, ii Geo. 2, p 1 Q ^ 1 Q or by his, her, or their agents, the distress itself shall not " ' • ' be deemed to be unlawful, nor the party or parties so making it be therefore deemed a trespasser or trespassers ah initio, but the party or parties aggrieved by such un- Recovery lawful act or irregularity shall or may recover full satis- damT'^e? faction for the special damage he, she, or they shall have sustained thereby, and no more, in an action of trespass or on the case, at the election of the plaintiif or plaintiffs ; provided alwaj^s, that where the plaintiff or plaintiffs shall recover in such action, he, she, or they shall be paid his, her, or their full costs of suit, and have all the like reme- Costs, dies for the same as in other cases of costs " («). And by sect. 20, " No tenant or tenants, lessee or lessees, shall recover in any action for any such unlawful act or irregularity as aforesaid, if tender of amends hath been made by the party or parties distraining, his, her, or their agent or agents before such action brought." If amends be tendered under this section, the landlord need not, in the case of action, pay the money into Com^t (/j). As has been seen, there are many cases to which sect. 19 Decisions on does not apply ; for instance, it does not apply to damage ® ^ ^ ^ ®- feasant, being expressly confined to distresses for rent ; apply to nor does it apply where the distress is void ab initio, which f^^l^^'^ we have recently treated upon, nor does it apply to any j^qj, ^iiere independent act, irrespective of the distress, as, for in- distress void stance, where a landlord, after making a distress, turned the tenant out of ^^ossession (c) ; although, if the ii'regu- larity be in the nature of a distress wrongful as to a part — as if in making a lawful distress the distrainor takes things (ff) See Itocke v. Hills, 3 & W. 736. Times Law Eep. 298. (c) Etherton v. Poppleioell, (b) Jones V. Goodai/, 9 M. 1 East, 139. 328 REMEDIES FOR Part II. Chap. XI. Merc irreg'u- laiity. Form of action. Winterbourne V. Morgan. wliich are absolutely privileged — the same remedies are available in respect of sucli irregularity as would have been available if the whole proceeding had been wrongful ; yet where the injury complained of is a mere irregularity, as for not properly impounding the distress, for using or destroying it, for selling too soon, without notice, or with- out due appraisement, or for remaining upon the premises an unreasonable time beyond the five days ; in these and tlie like cases the party aggrieved has now only the reme- dies mentioned in the statute. And the true construction of this statute seems to be, that an action on the case must be brought when the injury complained of is the subject of an action on the case, and an action of trespass, where it amounts to a trespass ; for the nature of the irregularity determines the nature of the action. This was well illustrated in the case of JFiiiterbourne v. Ilorc/an {(I), where a person who entered under a warrant of distress for rent in arrear con- tinued in possession of the goods on the premises for fifteen days, dm-ing the four last of which he was removing the goods, which were afterwards sold under the statute ; and it was held, that at any rate he was liable in trespass for continuing on the premises, and disturbing the plain- tiff in the possession of his house after the time allowed by law. In this case, Le Blanc, J., says, "All that the Act seems to say was, that a joarty whose entry was lawful to take a distress on the premises should not be made a trespasser ab i)iitio for any subsequent irregularity, as he was deemed to be before that Act. The object of it was to separate that which he had a right to do from that which was irregular and unlawful ; and, therefore, it meant to say that the landlord should not be deemed a trespasser for entering and taking the goods in the first instance, or for continuing in possession of them on the premises for as long time as the law allowed him to con- {(l) 11 East, 395. IRREGULAR DISTRE!?). Actions also lie for not removing the distress in a reason- able time (o) ; or for locking up the whole of the premises and excluding the tenant [j)) ; and the measm'e of damages will be the actual loss sustained {q) . {h) Wallace v. King, 1 H. Bl. 13 ; Cuckson v. Winter, 2 M. & Eyl. 313 ; Whitworth v. Smith, i M. & Eob. 193. (/) Dalton V. Whittem, 3 Q. B. 961 ; Roffey v. Hender- son. 17 Q. B. 574; Wilde v. Waters, 16 C. B. 637. (k) Dalton V. Whittem, supra . (l) Kniyht v. Egerton, 7 Exch. 407 ; Biggins v. Goude, 2 Cromp. & Jer. 364; Notts V. Curtis, 5 C. & P. 322 ; Whitworth v. JIaden, 2 C. & K. 517. {m) Notts V. Curtis, su2)ra. («) liocke V. Hills, 3 Times Law Eep. 298. (o) Com. Dig. Distress, I. I'p) Smith V. Ashforth, 29 L. J. Ex. 259. {q) Mayue on Damages, 4th od. 406. IRREGULAR DISTRESS. 331 In an action for not selling a distress at the best price, Part II. the plaintift' was allowed to prove that the goods were left *^^^P- ^^' standing in the rain, and that they were improperly allotted (r). Reasonable care must bo used to obtain the best price. Best price. The price at which the goods have been appraised will be presumed to be the best price until the contrary is shown (.s), but the appraised value is not conclusive, unless the jury are satisfied that the best means were taken to ascertain such value ; and the fact that they sold for no more makes no difference {f). The price realized at a sale by auction has been held to bo pr'iDid fade evidence of the value of the goods [h). So an action will lie against a person who neglects to Neglect to give a copy of his costs and charges (.r), or who omits to ff^costsf^ leave the overplus of the proceeds of a distress with the sheriff, under-sheriff, or constable, under the 2 Will. & M. c. 5, s. 2 (y), or against a distrainor for taking excessive charges (s), or who wrongfully seizes and sells unripe growing crops under the 11 Greo. II. c. 19, s. 8 {(() ; so, also, for distraining beasts of the plough or sheep A^'llilst there are other and sufficient available subjects of distress on the premises. As we have seen, the only remedy for this besides rescue is under the statute 51 Hen. III. st. 4 {b). So, also, for driving a distress out of the county, or im- Driving dis- pouncling it in several places ; the remedy for which is co*^i]ty^ ° given by the statute 1 & 2 Phil. & M. c. 12, s. 1 (c). (r) Poijnter v. Buclderj, o Hart \. Leach, llsL &^Y. 5Q>0. C. & P. 512. (?/) Ante, pp. 262, 263. (s) Walter v. Rumbal, 4 (;:) Ajite, p. 263 ; Hills v. Mod. 390; EuUeu, 192. Street, 5 Bing. 37. (0 Clarke v. Hoi ford, 2 C. («) Ante, p. 124; Owen v. & K. 540. ' Leigh, 3B.& AM. 470; Proucl- {u) Rapley v. Taylor, 1 C. loveY.Twemlow,\(j.&,^i.Z2Q. & E. 150. {b) Ante, p. 146. {x) Ante, pp. 209, 261, 262 ; [c) Ante, p. 236. 332 REMEDIES FOR Part IT. In actions for irregular distresses, tlie proper practice is Chap. XI. ^Q make either the landlord alone, or the landlord and broker defendants, and not to join appraisers and other persons concerned (d). We have abeady mentioned in what ways the landlord is liable for the acts of his brokers and agents {c) . We have also mentioned that a pound keeper is not answerable for a wrongful distress, unless he exceeds his duty (/) . And in an action of trover for a chattel wrong- fully distrained, it has been held that the mere fact of making an inventory, or drawing a notice, is not sufficient to subject a person to be joined as a defendant, unless he interfered with the goods or with the disposition of them (g) . So, also, where goods were distrained which were not liable to a distress, it was held that an action of trover could be brought by the owners without a demand of the goods and refusal (//), And if a party pays money in order to redeem his goods from a wi-ongful distress for rent, he may maintain trover against the wrongdoer {i) . 11 Geo. 2, It is enacted by the statute 11 Geo. II. c. 19, s. 21, that *' in all actions of trespass, or upon the case, to be brought against any person or persons entitled to rents or services of any kind, his, her, or their bailiif or receiver, or other person, relating to aii}^ entry by virtue of that Act, or otherwise, upon the premises chargeable with such rents or services, or to any distress or seizure, sale, or disposal of any goods or chattels thereupon, it shall and may be lawful to and for the defendant or defendants in such actions to plead the general issue and give the special matter in evidence, any law or usage to the contrary notwithstanding ; (f/) Child V. Chamberlain, 6 v. Ke?ii, 1 T. E. 62. C. & P. 213, 484. {(/) Ward v. Harjdon, Esp. {e) Ante, p. 207. See CraU 552. V. /u7Z/cyt, 3C.&P.216; /owes (/i) Ward v. Ventom, 2 V. Buckleij, 2 Jur. 204 ; Hurry Peake, 126. V. Rickman, 1 M. & E. 126. («) Shipicick v. Blanchard, (/) Ante, p. 235 ; Branding 6 T. E. 298. 19, s. 21. IRREGULAR DISTRESS. 333 and in case the plaintiff or })laintiffs shall become nonsnit, Part 11. discontinue his or their action, or have judgment against ^^^^V- ^^- him, her, or them, the defendant or defendants shall recover double costs of suit." This section does not seem to apply to unlawful dis- Decisions on i T,i.ixi.i ^ • ^ ' ^ • the statute. tresses, but only to those winch are u-regular or excessive. The defendant is not bound to avail liimseK of the sec- tion, but may, it is conceded, enter a defence in the ordi- nary form. If he jileads pajTiient of money into Com-t, he is not entitled to the costs given by this section. In order to have the benefit of the above Act he should show either that he tendered sufficient amends before action brought, or that the plaintiff had no cause of action (/.•). We have already mentioned that " double costs " are now done away with. The plea of " not guilty by statute " given by this sec- " Not guilty tion is limited by the Judicatm-e Acts (/) in this respect, that no other defence can be pleaded with it except by the leave of a Court or a judge. This plea not only puts in issue the wrongful act complained of, but also the tenancy itself, the ownership of the goods, the distress, and all matters of justification (in). It has been decided under this section that a landlord obtaining judgment may re- cover his double costs, though he has pleaded specially (n). The landlord can only justify for acts done as land- lord (o). The section does not extend to a distress made off the premises on goods fraudulently removed (/j). (A-) Handcock v. Foulkcs, 9 («) Gambrell v. Earl of M. & W. 431. Falmouth, 5 Ad. & Ell. 403. (^)E. S. C. Ord. XlX.r. 12. (o) Gilbert's Distress, by But see Neale v. Mackenzie, 1 Impey, p. 75 ; Bullen, 198. M. & AV. 747. (;j) Vaughany. Davis, lUsp. (?«) Williams v. Jones, 11 257 ; Furneaux v. Fotherhy, Ad. &EU. 643; i?oss v. C^/^«, 4 Campb. 136; Postman v. ibid. 631 ; Nash v. Uicas, 16 Harrell, 6 C. & P. 225. See L. T. N. S. 610. Jones v. Williams, 11 A. & E. 643. 334 EEMEDIES FOR Part II. Chap. XI. Of an exces- sive distress. In eouclusion, we "U'ill again call om* readers' altentiou to sect. 20 of the 11 Greo. II. c. 19 {q), which, provides that a plaintiff shall not recover in any action for an irregularity if a tender of amends he made hefore action brought. The landlord and broker in distraining are bound to use due care and reasonable judgment, skill, and discretion with regard to the quantity and value of the goods they take in reference to the demand for which the distress is made. If a reasonable proportion is not observed between the amount of rent due and the goods seized, the party dis- training will be guilty of an excessive distress. At common law. 51 Hen. 3, St. 4. 52 Hen. 3, c. 4. 28 Eclw. 1, St. 3, c. 12. Excessive distresses were always illegal at common law, and were also declared to be so very early by statutory enactments. First of all, by the stat. 51 Hen. III. st. 4 {De disfn'rtione scaccarii), and subsequently by the Statute of Marlbriclge (52 Hen. III. c. 4), and the 28 Edw. I. st. 3, c. 12. The terms of the fourth chapter of the Statute of Marlbridge are, that " distresses shall be reasonable and not too great, and that he who takes great and unreason- able distresses shall be grievously amerced for the excess of such distresses." In former times the only proper remedy for an exces- sive distress was by an action on the case (r), except where the distress was so excessive on the face of it that some of the things must be supposed to have been taken without any shadow of claim ; as where six ounces of gold and 100 When trespass ouuces of silver were taken for 6.9. Sd. (.s) . If an excessive distress be altogether wrongful, or if in the conduct of it any irregularity is committed, which in its nature is the maintainable. (g) See a}i/e, p. 327. (r) Hiitcliins v. Chamhers, 1 Burr. 579; Lynne v. Moody ^ 2 Stra. 851 ; Woodcraft v. Thompson, 3 Lev. 48 ; Hughes V. Broinie, 7 Jr. L. E. 492. (s) Hiitchins V. Chamhers, supra; Croivther v. Rams- hotham, 9 East, 298; Moir v. Mimday, 1 Burr. 590. EXCESSIVE DISTRESS. 335 subject-matter of an action of trespass, for this separate Part II. cause of action trespass may be maintained (f). Cnap. Al. A criminal prosecution will not lie for an excessive distress {/(). To make a seizure tortious it is not necessary that the party shoiikl bo guilty of a criminal act. If he takes that which he has no right to take he is immediately liable to a civil action (x). A distress to be excessive must be obviously unreason- What is able. So where a tithe owner seized nnder a distress for 39/. a rick of wheat valued at 62/., there being smaller ricks upon the premises, tlie straw of which the tenant was bound to consume on the premises, and the tithe 0"v\iier sold the rick for 42/., subject to the pm'chasers leaving the straw ; it was held that this was not an excessive distress, that the tithe owner was not bound to sell the straw, that the whole rick might be taken, and that a party seizing under a distress is bound only not to take what is manifest I ij excessive ; "Wilde, 0. J., observing : " The Statute of Marl- bridge, which gives a remedy for an excessive distress, points at cases of flagrant abuse of the process of law ; and Lord Coke, in commenting upon it, puts such illustrations as distraining two or three oxen for twelve pence, or the like small sum, and other eases of flagrant abuse. A party entitled to a distress is not bound to be strict as to the amount seized, but need only use reasonable care and caution, and must not seize what is clearly excessive " (//). "Where there is only one thing found upon the premises which can be taken as a distress the distress will not be excessive, however great the value of that thing may be {z). (t) Lynne v. Moody, 2 Stra. (y) Roden v. Eyton, 6 C. B. 851 ; Etherton v. Popplewell, ATI ; Field v. Mitchell, 6 Esp. 1 East, 139. 71 ; Willoughby v. Backhouse, («) Rex V. Bradshaw, 7 C. 2 B. «& C. 823. & P. 233 ; Bullen, 201. (s) Field v. Mitchell, supra; (ar) PerLordKenyon, C. J., Avenell v. Croker, Moo. & in JFardy. Ventom, 2 Peake, Malk. 172. 126. 336 REMEDIES FOR Part II. "Where a distress is altogetlier -wrongful, as wliere tlie P" rent has been tendered before the levy, if it be also exces- Where dis- sive the party grieved might waive his right to maintain as well as ° trespass, and sue in case for the excess («). But it excessive. seems that a plaintiff in such case was obliged to make his election as to the injury for which he would sue, and could not recover both for a -s^Tongful and for an excessive distress (b). Thus, a recovery in replevin was held to be a bar to an action for an excessive distress, upon the ground that the plaintiff had ah'eady recovered his goods, and damages for their detention ; and as in the previous action he had pleaded the taking as wholly tortious, he could not be permitted to say that it was rightful in j)art (c) . But where a landlord of a warehouse, let with heavy weighing machines, distrained property to an excessive amount, and locked up the warehouse so as to keep the tenant excluded, and the proceeds of the sale, less the expenses, did not equal the amount of the rent due, but there was evidence that the value was ten times that amount, and the tenant sued both in trespass and for an excessive distress, a verdict for the plaintiff on both counts, and upon each of them for substantial damages, was up- held {(I). The ^^laintiff must show that he has such a projjerf// in the goods as will allow him to maintain an action for their excessive distress. So wliere the plaintiff was the tenant of a house, and his rent having fallen into arrear the land- lord distrained to an excessive amount, and it appeared that all the goods in the house had been assigned to trustees (one of whom resided with the plaintiff) on trust for the plaintiff's wife, who lived in the house with her Property in tlie goods must be shown. (rt) Branscomh v. Bridges, 1 B. & C. 147 ; Holland v. Bird, 10 Bing. 15. {b) Gilb. Distress, by Hunt, 68. (c) Phillips V. Berryman, 3 Doug. 286. {d) Smith V. Ashforth, 29 L. J. Ex. 259. EXCESSIVH J)lSTRi:.S.S. 337 ImsLiiiid; it w;is liel•). He must have a property absolute or qualified in the goods distrained (/). But a special property is sufficient; there- fore a person to w'hom goods are pledged may maintain replevin in respect to them {»i), or a bailee to whose custody goods have been entrusted {ii). So where goods were assigned to trustees on trust for the tenant's wdfe, it was held that the enjoyment of the use of the goods by the tenant gave him a special property (e) Got/ V. Mattheics, 4 B, & S. 425 ; Fletcher \. Wilkins, 6 East, 283. See also Jones V. Johnson, 7 Ex. 452. (/) 1 Swanstou's Eep. 296 ; Coop. 414. {y) Davies y.Poicell,'W\']les, 46. (Ji) Gilb. Eepleviu, 156 ; Sid. 82. (?■) Bac. Abr. Eepleviii(F.) ; Roberts v. Snell, 1 Man. & G. 578. {j) Nibletty. Smith, 4 T. E. 504 ; Pitt-Lewis' County Ct. Prac. Isted. 722. {k) 19 & 20 Yict. c. 108, s. 64. (0 Com. Dig. tit. Pleader (3 K. 1); Co. Litt. 145 b; Bro. Eepl. fol. 8, 220 ; 1 Chit. PL 182, 183, 7th ed.; 2 Selw. Nisi Prius, 13th ed. 1150; Com. Dig. Eeplevin (B.). (m^i Pitt- Lewis' County Ct. Prac' 1st ed. 723. («) Bro. Abr. tit. Eepleviu, pi. 29 ; 2 Eoll. Abr. 430. BY WHOM REPLEVIN MAY V.K HAD. 349 ill tliom, altliougli lie was neither tlie legal iior the eqiiit- Part II. able owner (o). Chap. XII. Persons jointly interested in a chattel (as joint owners Joint owners J. .. > • 1 • , • PI- ^od tenants ana tenants in common) may maintain an action ot reple\in Jq common, in resiJect thereof, and should all be joined as plaintiff s ( /^) . But several persons cannot join in one replevin for several chattels where the property in them is several ; for each has a several and partieidar injury done him, and there- fore they cannot jointly complain of an unjust capti«). By sect. 133 of the County Com-ts Act, 1888 («), aU ^^^^^^^ actions of replevin which shall be brought in the Court, shall be brought by plaint, and in every such action the plaint shall be entered in the Court of the district where the goods were seized. The plaint is entered in the same way as in other County Court cases (o). By 51 & 52 Yict. c. 43, s. 136, the action must be 51 & 52 Vict, brought icitJdn one [calendar) month from the date of the {h) Axford V. Perretf, o 4 B. & S. 578. Unless there Biag. 586. be an exclusive right to grant {i) 25 Hen. 3, c. 21; Year replevins in a particular Coui-t Book, 2 Hen. 7, 5, 6 ; 2 Inst, by reason of some franchise, 139. &e. {k) This section, however, {in) Pease v. Chaijtor, 3 B. is repealed by the County & S. 634. Courts Act, 1888. («) 51 & 52 Yict. c. 43. {I) Re(j. V. GurduH, 12 W. (o) See CountyCom-tEules, E. 201 ; Reg. v. Raines, 1 E. 1889, Ord. V., rr. 1, 2. &B. 855 ; Fordhnm v. Akers, 360 PROCEEDINGS IN REPLEVIN. Part II. Chap. XII. County Court Rules, 1889. Joinder of action. Particulars. Summons. As to the trial. Summary- procedure. security (whether by bond or memorandum of deposit), and must be prosecuted "with effect and without delay." By the County Court Eules of 1889, Order XXXIV., provision is made for the regulation of actions of reple^dn. By rule 1, "In actions of replevin no other cause of action shall be joined in the summons "(o). By rule 2, "On entering a plaint in reple^dn the plaintiff must specify and describe in a statement of particulars the cattle, or the several goods and chattels taken, and the distress or other taking of which he complains ''{])). It is not usual or proper to insert in the particulars the price of the cattle or goods taken ; for the plaintiff, if he succeeds, is not entitled to recover theii' value, but only damages for theii^ unlawful taking and detention (q). Upon the plaint being entered a simimons issues in the usual form with particulars annexed, and a copy is served on the defendant by the bailiff in like manner as in other actions (r). The preparations for the trial are the same as in other cases, consisting chiefly in the summoning of witnesses, and the giving of notices to produce and admit. A jury may be obtained in an action of reple^dn, pro\d- sions for this having been expressly made by Order XXII. rule 3. By the County Court Eules, 1889, Order XXXIY. rule 3, "All actions of replevin in cases of distress for rent in arrear, or for damage feasant, shall be tried in a sum- mary way as other actions in the Courts holden under the authority of the County Courts Act, 1846 (s), and the judg- ment therein, in ordinary cases, whether for plaintiff or (o) Miingeau v. Wheatleij, 6 Exch. 88. {p) Forform, seeApp.B.(9). None is provided by the rules. {q) 2 Wms. Sauud. 726, note (1); Pitt-Lewis' C. C Prac. 1st ed. 730. (r) Pollock & Nicol, C. C. Prac. 8th ed. 205. (s) See County Courts Act, 1888, which repeals the above Act. COTJNTV COriM ACTIONS OK REPLEVIN. 361 defendant, shall be, unless otherwise ordered, according to Part II. the forms in the Appendix "(0- Chap. XII. Tlie plaintiff must prove the tahuKi of which he com- Ex-idence for 1 • 1 . , . , p , . n 1 . 1 ii ^ the plaintiff . plains, this heing the foundation of the action, and that the defendant was the person who took it or caused it to be taken [h). He must also prove that the goods were taken -SN-ithiu the district and jurisdiction of the Court mentioned in the plaint (/•) ; and tliat the goods so taken were his, i.e., that at the time of the taking he had an absolute or qualified property in them (.r) . If the goods are taken under a distress for rent, he may plead the several matters which we have already described, showing that such distress was wrongful ; as, for instance, that there was no actual demise at a fixed rent, or that no rent was due. Where a plaintiff claims a right of common in respect of distinct lands, the jury must have sufficient evidence before them to enable them to say in respect of which lands the right of common exists {y). The defendant, unless he denies the taking altogether, Evidence for must be able to prove that he is entitled to a return of the goods replevied (~) . Special or consequential damages sustained by the plaintiff, in consequence of the goods repleaded, may be awarded by the jury to the plaintiff. But he must recover them in his action of reple^TH ; for judgment in reple\in is a bar to an action in respect of trespass to the goods. {t) For forms, see Appeu- {x) Ante, p. 348. And see dix B. (14) and (15). Fell v. Whittaker, L. E. 7 Q. (/<) Galloicay v. Bird, 12 B. 120. Moore, 547. See also Potter (y) Neicby v. Sinyleton, 1 \. North, 1 Wms. Saund. 635 ; L. J. K. B. 165. Evans V. Elliott, 5 Ad. & Ell. (r) Gooclman\.Ayling,Ye\Y. 142. 148 ; Matthews v. Carey, 1 {v) Potter Y. North, supra; Salk. 107; 1 Wms. Saund. Potten V. Bradley, 2 Moo. & 640 ; Pitt-Lewis' C. C. Prac. Payue, 78. 1st ed. 732. See also Wood- fall's L. & T. 12th ed. 475. 362 PROCEEDINGS IN EEPLEVIN. Part II. Damages cannot be awarded in respect of a trespass to Chap. XII. i^^^ committed in tlie taking of tlie goods replevied (a). It is sufficient if the defendant proves a legal right to distrain for any cause whatever, either on his own behalf, or as the bailiff or agent of any other person (b) . The amount of rent in arrear and the value of the goods distrained should also be proved (c). Judgment. The judgment in replevin in ordinary cases is in the usual form as in other actions. If the verdict or judg- ment be for the plaiiitrffi, it is not for the value of the goods, but simply for the plaintiff with damages for the illeo-al distress. If for the defendant, then where the taking was by way of distress for rent or other debt, the value of the goods distrained must, if the defendant require, also be found. Whilst if the distress was for damage feasant, the amount of damage sustained by the defendant must, if the plaintiff so require, be similarly County Court found {(l). This is provided by the County Cornet Eules, Eules, 1889. ^^^^^^ ^^^ ^^.^^^ ,, Where the distress is for rent, or for any other claim for which a distress may be lawfully taken, and the defendant succeeds in the action, if the defendant shall so require, the Court shall, if the action is tried without a jury, and the jury shall, if the action is tried with a jury, find the value of the goods distrained, and if the value is less than the amount of rent or other- wise of money in arrear, judgment shall be given for the amount of such value, but if the amount of the rent or such other smn of money in arrear be less than the value (a) Gibbs V. CndkshanJc, L. E. 8 C. P. 454 ; Pease v. Chai/tor, 3 B. & S. 620. {b) Whitehead y. Taylor, 10 A. & E. 210; Troit v. Hunt, 9 Exch. 14; Trevillian v. Pine, 11 Mod. 112 ; 1 Wins. Saund. 347, note {d); Snell v. Finch, 13 C. B. N. S. 651 ; Reece v. Strousbcrg, 54 L. T. N. S. 133; Deaii of Christ Church, Oxford V. Duke of Bucking- ham, 33 L. J. C. P. 322. (c) Sheape v. Culpepper, 1 Lev. 255. {d) Pitt-Lewis' C. C. Prac. 1st ed. 732. COUNTY COURT ACTIONS OF RErLEVIN. 3G3 60 found, judgment shall be given for the amount of such Part II. rent or other sum of money, and may be enforced in the Chap. XII. same manner as any other judgment of the Court." lu case of Ord.XXXIV.r.4(.). J^^l^ " "Where the distress is for damage feasant, and the "VMiere the .,,,., „ , •Pii distress is for defendant is entitled to judgment tor a retiu-n, it tlie aam!i<,'-c plaintiff shall so require, the Court shall, if the action is feasant, tried witliout a jury, and the juiy shall, if the action is tried with a jury, find the amount of the damage sus- tained by the defendant, and judgment shall then be given in favour of the defendant, in the alternative, for a retm-n, or for the amount of the damage so found." Ord. XXXIV. r. 5 (/). In cases other tliaii those of distress the following rule In cases other , . , , than those of IS aiiphcable :— distress. " In all cases of replevin, other than those arising out of a seizure by way of distress where tlie defendant justifies the taking and proves his case, the judgment for the defendant shall be for a retui-n of the goods, with or without costs." Ord. XXXIV. r. 6. In default of any du-ection on the subject, the successful Costs, party is entitled to his costs, and it is provided by the County Court Eules, 1889, that " costs in actions of replevin may, where the fees of Court are paid on 5/. or upwards, be allowed to solicitors, upon the higher scale in the Appendix applicable to actions where the amount claimed exceeds 20/., if the judge ghaU so order" (g). In actions of replevin the County Com-t possesses the New trial, same general power of granting a new trial as in other cases. An action of replevin often involves a question of right, Question of right. (e) For forms, see App. B. (^) Ord. L. r. 19, SeeApp. (15). to the rides. (/) Forform, seeApi).B.(16). 364 PROCEEDINGS IN EEPLEVIN. Part II. aud a new trial may be granted, although the verdict be Chap. XII. £qj, ^ gi;Qr^n amount ; for the rule in the High Court that a new trial will not be granted if the damages recovered are less than 20/, does not apply to actions of replevin {//). Appeal. An appeal from the decision of the County Com-t is allowed in actions of replevin where the amount of rent or damage exceeds 20/., subject to such conditions as may be for the time being provided by the Eules of the Supreme Court regulating the procedm'e on appeals fi'om inferior Courts to the High Coiu^t (/) . If the parties before decision given agree in writing not to appeal, they can do so (k). The practice in regard to appeals in cases of replevin is the same as in ordinary cases (/). Actions of We have already set out sect. 135 of the statute 51 & 52 meSin the ^ict. c. 43 im),hj which an action of reple^dn may be com- High Court, nieuced in any one of the Superior Courts of law in the Time for com- ^qj.^ applicable to personal actions therein. The action mencing. ^ ^ ■■■ must be commenced irithin one iceek from the date of the replevin bond, and it must be prosecuted "without delay and with effect," or the bond will be forfeited. Indorsement It is commenced by writ of summons, which is indorsed summon?. ^s follows :— " The plaintiff's claim is in replevin for goods ■s\Tongfully distrained" (»). Common Law The Commou Law Procedm'e Act, 1852, s. 41, autho- Act^^i8T2^ rized the joinder of any causes of action in one action, except replevin and ejectment ; but now, by the Rules of {h) Edgson v. Cardtvell, (/) See Mr. Pitt-Lewis' L. E. 8 0. P. 647. treatise on County Court (i) 51 & 52 Vict. c. 43, Practice, pp. 541 et seq. See s. 120. See Norris v. Carring- also pp. 722 — 734, from which ton, 16 C. B. N. S. 10, as to several of the above remarks security for costs. and authorities are taken. Ui) 51 & 52 Yict. c. 43, {in) Ante, p. 351. s. 123. (n) E. S. C. App. A. Pt. III. s. 4. iricar cokrt actions of replevin. 3Go the SuiDrerae Court, Orel. XVIII. r. 1, " tbo pliiiutlll' may Part If. unite in the same action several causes of action ; ]jut if it ^P' appear to the Court or a judge that any such causes of action cannot be conveniently tried or disposed of together, the Court or a judge may order separate trials of any such causes of action to be had, or may make such other order as may be necessary or expedient for tlie separate disposal thereof" (o). The only damages recoverable in this action are the Damages, expenses to which the plaintiif has been put to replevy his goods. No damages were recoverable at the common law in an At common action of replevin or second deliverance, and in case of a ^'*'"'- verdict for the defendant, or of the plaintiff's being non- suited, the judgment at common law was merely for a return of the goods (p). By the combined effect of the statutes 7 Hen. VIII. c. 4, s. '6, and 21 Hon. VIIT. e. li), s. 3, a person making avowry or cognizance, or justifying as bailiff, if the avowry, &c. was found for him, or the plaintiff was non- suited or otherwise barred, recovered his damages and costs. By 17 Car. II. c. 7, s. 2, in reple\'in for arrears of rent, provision was made, upon a suggestion of the defendant in the case of a nonsuit before issue joined, or of a judgment for the defendant on demurrer, for the issue of a writ of inquiry upon the return of which defendant had judgment to recover the arrears of rent, if the goods, &c. amounted to that sum ; and, if not, then the value of such goods, &c., ■^ith his full costs of suit ((/) . But these statutes are repealed ; still there is no doubt that, by proper claim or counterclaim, a (o) For form of statement costs as between party and of claim, see Appendix B. (25). party, and notcostsas between (j9) Chit. Forms, 7th ed. 584. solicitor and client, Jconieson (q) This means ordinary v. TrevyUjan, 10 Ex. 748. 366 PR0CEEDINC4S IN REPLEVIN. Part ir. Chap. XII. Defences : Avowry aud cofjiiizance. Payniout iuto Court, Discontinix- ance of action. Nonsuit. defendant can now recover any damages to whicli he may be entitled (r). Before tlie Judicature Acts, if tlie defendant contended that tlie goods Avere taken by liim in liis ovm right, his pleading was called an " avowry " ; if in the right of another, as when the defendant was bailiff or agent of the person having the right, it was called a " cognizance." The plaintiff's next pleading was called a " plea in bar," and the defendant's pleading to such plea a " replication." These technical terms no longer exist, though they are still frequently used for the sake of convenience (s). Money may be paid into Court in an action of replevin in the same way as in other actions. And it may be paid in as to part of the goods taken, and a justification made as to the rest (/). Such payment into Com-t will not, nor ■will the acceptance thereof by the defendant in satisfac- tion, cause a forfeiture of the replevin bond {u). The plaintiff may discontinue the action as in other cases, but he will thereby forfeit his bond or other security conditioned to prosecute the action "with effect and without delay." The defendant, however, cannot discontinue {:<■). The plaintiff may be nonsuited as in other actions, and in this case the defendant has a return of the goods or cattle with costs. And the defendant may now by counter- claim recover not only the goods or cattle, but also damages and costs. The jmy were also by 17 Car. II. c. 7, s. 2, empowered to inquire into the arrears of rent in an action (?•) Maj'ue on Damages, 4th ed. 401. (5) The former law with regard to avowries and cog- nizances is stated at leng-th in the 12th edition of AVood- f all's Landlord and Tenant byLely, pp. 481—484. For forms of avowry and cogniz- ance, see App. B. (26), (27), (28), and (29). {() Lambert v. Hepirorth, 2 Q. B. 729. See County Court Eules, 1889, Ord. IX. r. 18. (?0 C. L. P. Act, 1860, ss. 23, 24. (.r) Long v. Buclicridye, 1 Stra. 112; Hndgldnson v. Snibson, 3 Bos. & Pul. 603. HIGH COURT ACTIONS OF REPLEVIN. 367 of replevin, and tluj value of the cattle or goods distrained, Tart II. if required by the defendant (y). Chap. XII. If a verdict is found for the jilaintiff, the jury assess Damages, the damages as in an ordinary action of trespass. Unless special damage is laid tliey are generally only costs of the replevin Lond ; and l)cfore the statute 19 & 20 Yict, c. 108, Avcre always assessed at 21. 2s. in London, Mid- dlesex, and York, and in some other places, and 2/. 10s. elsewhere (;:). They now di-peud upon tlie amount dis- trained for. These arc all he is entitled to, as he has already recovered possession of the goods distrained (a). If the goods or cattle have not been delivered to the plaintiff he is entitled to recover their value with costs, and expenses of the replevy, and also damages for their detention (b). Special damages arising from an injmy to the goods may now bo awarded in replevin {c). The execution for the plaintiff is the same as in other Exccutiuu. actions, namely, by_^. fa., or elegit (d). Before the Judicatiu-e Acts if the defendant had judg- Wrif'De ment at common law he had execution by a writ of " ^e retoruo /labcndo " for a retm'n of the goods or cattle dis- trained, and a Ji. fa. for his damages and costs (e) . There was also a proceeding called ^^ capias in uifZ/eniam,'' which " Capias in we have mentioned before (/). But now the jury will probably alwav's find the A'alue of the goods, and the judg- ment, if for the defendant on his counter-claim, will be (y) Woodf all's L. & T. (b) 2 Chit. Ai-ch. 1082, 12th ed. 486. But see 44 & 11th ed. 45 Vict. 0. 59, s. 3. (c) Gibbs v. Cruikshank, {z) Mayneon Damages, 4th L. E. 8 C. P. 454. ed. 401. (r/) Arch. Prac. by Pren- (rt) MajTie on Damages, tice, 13th ed. 898. supra. (e) Ibid. if) Ante, p. 343. retorno ha- bendo.''^ tvitkeriiam." 368 PROCEEDINGS IN REPLEVIN. Part II. Chap. XII. Removal by certiorari from County Court into High Coiu't. Application for the writ. Affidavit to support appli- cation. Effect of the 51 & 52 Vict. c. 43, s. 129. the same as that for the plaintiff in an ordinary action for detention of goods. An action of replevin may be removed into the High Com-t of Justice at the instance of the defendant by a ^^Tit of certiorari by leave of the Court or a judge {g). The object of the statute being to avoid heavy costs, the application for the ^\Tit should be to a judge at chambers, and not to the Court. If the judge thinks there is any difficulty in the ease, he can send the matter to the Com't(/0. The application should be supported by an affidavit, which should be entitled in the same way as affidavits in the High Court, but not in any matter or cause. It should state sufficient facts to induce the Coiui or judge to grant the certiorari. As we have seen, if such are the facts, it should particularly state that the defendant has good ground for believing either that the title to some corporeal or incorporeal hereditament, or to some toll, market, fail', or francliise is in question, or that the rent or damage in respect of which the distress was taken exceeded 20/. (/). The certiorari might sometimes be obtained on an ex parte application. Sometimes only a rule uid will be granted or summons to show cause. By the 51 & 52 Yict. c. 43, s. 129, the Comi or a judge may dii'ect that a rule or summons shall operate as a stay of proceedings. But the Comi mil not stay proceedings in an action of replevin unless upon payment of the rent in arrear together with all costs, though the arrears were tendered before replevin with costs up to that time (/.•) . (y) 51 & 52 Yict. c. 43, s. 137, ante, p. 352. And see County Court Kules, 1889, Order' XXXIII. As to irre- gular proceedings inremoAdng such, replevin, see Stansfield v. Hellawell, 7 Ex. 373. (/<) Boiven V. Evans, 3 Exch. 111. (/) For forms, see App. B. (17) to (24) inclusive. (k) Hopkins V. Shrole, 1 Bos. & Pul. 382. CERTIORARI. 369 By tills section it is providod tliat "the grant Ly tlie Part II. lligli (y'ourt, or Ly any judge thereof, of an order or ^hap. XII. summons to shoAV cause wliy a writ of certiorari should not Stay of pro- issue to any Court shall, if the High Com-t, or a judge ^^^ ^^°^' thereof, so direct, operate as a stay of proceedings in the action or matter to which tlie same shall relate, until the determination of an order or summons, or until such High Court or judge thereof shall otherwise order ; and the judge shall from time to time adjourn the trial of such action or matter to such day as he shall think fit, until such determination, or until such order be made ; hut if a copy of such order or summons shall not be served by the party who obtained it on the opposite party, and on tlie registrar iwo clear daijfi before the day fixed for the trial of the action or matter, the judge may, in his discretion, order the party who obtained the order or summons to pay all the costs of the day, or so nnich thereof as he may think fit, unless the High Court, or a judge thereof, shall have made some order respecting such costs." And by sect. 130 : — " Where a writ of certiorari to a Certiorari. Court shall have been granted by the High Court, or a judge thereof, on an ex parte application, and the party who obtained it shall not lodge it with the registrar, and give notice to the opposite party that it has issued tico clear days before the day fixed for the trial of the action or matter to which it shall relate, the judge may, in his dis- cretion, order the party who obtained the writ to pay all the costs of the day, or so much thereof as he shall think fit, unless the High Com-t, or a judge thereof, shall have made some order respecting such costs." By sect. 132 : — " When the High Com-t, or a judge Refusal to thereof, shall have refused to grant a writ of certiorari to ^^.^ri ^^" a Court, or any such order as mentioned, no other Court or judge shall grant such writ or order ; but nothing herein shall affect the right of appealing from the decision of the judge of the High Court to the High Court itself, O. B B 370 PROCEEDINGS IN REPLEVIN. Part II. Chap. XII. Security. Bond and deposit. Writ of re- caption. or prevent a second application being made for sueli writ or order to tlie Higli Court, or a judge tliereof, on grounds different from those on wliich tlie fii\st application was founded." The hearing of the summons or rule nisi is the same as in ordinary cases, and when an order or rule absolute has been obtained, the writ of certiorari may be issued (/). The defendant must give secmity, to be approved of by the master, for such amount, not exceeding 150/., as he shall think fit, conditioned as pointed out by the 137th section of the above Act {»i). The security is in the form of a bond with two sm"eties to the plaintiff ; or, instead of giving a bond, a deposit in money may be made, as appears by sect. 109 of the above Act (li) . The defendant should then enter an appearance in the High Cornet in the usual manner, and give the usual notice to the plaintiff or his attorney. If he do not enter an appearance the best method is to obtain an order at Chambers for that piu-pose. The subsequent proceed- ings are in all respects similar to those where the action is commenced in the High Court. We must now shortly speak of a particular species of wrongful distress for which a special form and remedy is provided ; that is to say, the distraining a second time for the same rent the same goods or cattle, they having been reple\ded and restored to the owner, and the action of replevin being still pending (o). For this injiuy the owner of the things so taken, whether the tenant or a stranger, may have a uTit of recfqjtion, in which, if the defendant is convicted, he will be fined to the Crown ; because by the second caption the defendant takes upon himself to determine the legality of the first whilst that (0 Woodf all's L. & T. 12th ed. 492. (m) For which see cinfe, l^p. 351, 352. (n) Ante, p. 353. (o) B alien, 185. WK'IT OF SIX'OXD DELIVERANCE. 371 very point is under the consideration of tlie Court in whicli Part II. tlio replevin is depending. For if the distress were lawful ^ P' in the first instance he would have a return of it by law ; and, therefore, the second taking is unreasonable ; and if tlie first were unlawful, much more so is tlie second, being for the same cause ; so that tlie recaption lies even where tlie cause of the first caption is just {p). But if the cattle of two different persons are at separate times distrained for the same rent, the owner of the second distress cannot have this writ, because his cattle have not been twice taken. It seems, however, that it lies even where different cattle of the same tenant are taken for the same cause as the former distress (q) . The damages to be recovered are not for taking or Damages, detaining the plaintiff's cattle or goods, but only damages for the defendant's contempt against the law (r). As we have seen, where the defendant had judgment Writ of for the retm-n of the goods, a vrrit " de retorno hahcndo " ih-erauce and issued in his favour, wherebv the ffoods were returned return irreple- " . . Yisable. again mto his custody, to be sold or otherwise disposed of as if no replevin had been made ; and v/hen the judgment was by the default or nonsuit of the plaintiff, he might at the common law have brought another replevin, and so on " ad infinitum, to the intolerable vexation of the defendant ; " whereupon the statute of "Westminster II. (13 Edw. I. c. 2) restrained the plaintiff, when nonsuited, from suing out any fresh replevin ; allomng him a judicial writ, issuing out of the original record, called a ^Tit of " second deliverance " (s) : in order that he might have the same ( p) Gilb. Replevin, by Im- (s) This writ issues out of pey, 224; Fitz. N. B. 71 (E.); the Petty Bag Office, and Brad. 263; Bullen, 185. must be directed to the proper {q) F. N. B. 71; Bullen, County Coiu'ts, which are now 185. courts of record. For forms, (r) 1 EoU. 320, 10; 5 Com. see Ajip. B. (10), (11), and Dig. (3 K.), 32, 305 ; Bullen, (12). 186. B B 2 372 PEOCEEDINGS IN EEPLEYIN. Part II. distress again delivered to him on giving tlie like seemity Chap. XII. ^g |3gf^^,g_ But if the plaintiff were a second time nonsuited, or if the defendant had judgment upon verdict or demurrer in the first replevin, the defendant was to have a writ of ^^ return irrcplevisahle ; '''' after which no writ of second deliverance was allowed (/). Proceedings An action on the reple\dn bond may be brought imme- ^^bond.^^^' cliately on the condition being broken {u). It should be brought in the name of the obligee (x). By sect. 108 of the 51 & 52 Yict. c. 43, the Comi in which any action on the bond shall be brought may by rule or order give such relief to the obligors as may be just ; and such rule or order shall have the effect of a defeasance of such bond. The plaintiff cannot recover more than the penalty and costs of suit on the bond. Therefore proceedings in such suit may be stayed on pay- ment of the penalty and the costs, though the plaintiff's costs in the replevin suit much exceed the penalty (?/). A plaintiff who has received taxed costs only, on staying a replevin suit, cannot recover the extra costs as damages in an action for a vexatious and excessive distress (~). A judge at chambers may order a stay of proceedings [a). Liability of Before the 51 & 52 Yict. c. 43, it was decided that on sure les. ^ distress for rent the sureties were not either jointly or separately liable beyond the amount of the rent in arrear at the time of the distress and the costs of the replevin {t) 2 Inst. 340; Stephen's rough, 6 Q. B. 13; Heffordy. Com. 7th ed. vol. iii. p. 617. ^-i-J'jer, 1 Taunt. 218; Gingell {ii) Gilb. Eeplevin, 225; v. Turnhull, 3 Bing. N. C. TroiermfMi V. I'm, 2 Wils. 41 ; 881. See also Wharton v. Ttirner v. Turner, 2 B. & B. Blacknell, 12 M. & W. 558. 107 ; Perreau v. Beavan, 8 D. (;:) Grace v. Morgan, 5 L. J. &E. 72; Arch. Prac. byPren- C. P. 180; JenMns v. Bid- tice, 13th ed. 1454. dulph, 4 Biug. 160. {x) Ihid. (a) Branscombe v. Scarho- (y) Branscombe v. Scarbo- rough, supra. RIGHT TO 15E0IX. 373 suit [h). And they were only liable to the amount of the Part IT. value of the goods seized, if the rent amounted to so much, ^hap. XII. or to the amount of the rent if it were less than that value, adding to such liability in either case the amount of the cost of the replevin suit. But in no case were they liable beyond the amount of the penalty (c). We have already set out sect. 109 of 51 & 52 Vict. c. 43, which gives the proceedings necessary for obtaining pay- ment of the sum deposited in lieu of a bond(f/). The application should be founded upon suilicient affidavits showing the breach of the condition, or other facts, as the case may be. In an action on a reple^dn bond, where the plaintiff, Judgment, instead of claiming damages, claimed the amount for or interlocu- which the bond was given, and judgment went by default, ^^• such judgment was hold to be final, and not interlocutor}'; and there was no necessity for a writ of inquiry, the old procedure (as to applying for a stay of proceedings) not being altered by the Judicature Act, 1875 {c). Where, in an action of reple%'in, the tenant pleaded that Eight to a distress had not been made within twenty years next ^^' after the time when the right to distrain fii'st accrued, it was held that on the trial the plaintiff (the tenant) was entitled to begin, since it lay on him to show when the distress was made (/). Upon the hearing of a special case stated in replevin the plaintiff has the right to begin {g) . (b) Ward v. Henley, 1 Y. & (e) Dix v. Groom, L. Ti. 5 J. 285. Ex. Div. 91. (c) Hunt V. Round, 2 Dowl. (/) Collier v. Clarice, 5 558 ; Myers v. Lochwood, 9 Q. B. 467. Dowl. 975. (9) Vigar v. Dedman, 24 {d) Ante, p. 353. L. T. N. S. 734. 374 Part III. DISTRESS FOR POOR AND HIGHWAY RATES, &c. CHAPTER XIII. Section I. — Distress for Poor and Highway Rates and Taxes. I. Poor rates. We will ROW give the summary j^owers wliicli are provided by the legislature for the levying and collecting of poor rates and taxes, and for the better enforcement of penalties imposed by justices. It is not om- intention to discuss this subject at any length, but we think it may be con- venient if we shortly state the law and decisions relating thereto. Powers of distress and sale on non- payment of poor rates. Power of committal in default of distress. Powers of succeeding overseers. And fii'st as to poor rates. By the statute 43 & 44 Eliz. c. 2, sect. 4, it is provided that " it shall be lawful as well for the present as subsequent churchwardens and over- seers, or any of them, by warrant, from any two juMtices .(as pro\dded by the Act), to levy the sums therein men- tioned for poor rates and all arrears, of every one that shall refuse to contribute according as thej- shall be assessed, by distress and sale of the offender's goods, rendering to the parties the overplus ; and in default of such distress, it shall be lawful for any two such justices of the peace to commit him or them to the common gaol of the county, there to remain without bail or mainprize until pajmient of the said sums and arrears." If a person rated to the poor refuses to pay his quota during the year of office of the overseers who made the rate, he can be compelled to pay by any subsequent overseers ; POWERS OF SUCCEEDIXG OVERSEERS. 375 aud it is not necessary that such overseers should be the Part III. immediate successors of those who made the rate {(i) . And ^J^'^P-^I^^I- the justices may issue a wari'ant against a churchwarden or overseer on the complaint of his co-churchwardens or overseers, just the same as against any otlier person ; for the law will not infer payment of the rate from the mere fact tliat the party is a chiu'chwarden or overseer (i). It seems also tliat overseers are liable to an action for an illegal distress upon a person who is not the occupier (c). Wliere a person is rated for promises in liis occupation, and for others which are not, the whole assessment is a nullity, and an action will lie {(/). Wo may remark tliat tlic Summary Jurisdiction Act, Sect. 47 of 1879 ( f . .'1 , , . «locs not recoverable m the same manner as poor rates ; and a dis- apply to poor tress warrant in respect of such rates may be issued in the '^^*^^' same way as before that Act (./'). So tlie issuing of a distress wan-ant to levy rates under a local Act does not come within the limitation of time provided by sect. 11 of Jervis's Act (y) ; and, therefore, tlie justices have power to issue such warrant at aiif/ time (//). Under a local Act, which enacted that the rates directed Lodgers' by that Act should be recoverable in the same manner as ^°° ^' poor rates, and which also enacted that the goods of any person occupying a fm-nished house should be liable to be distrained for the said rates ; it was held that the goods of («) Overseers of East Dean {d) L. Sf N. W. Rail. C'o.y. V. £'m-e^/, 30 L. J. M. C. 117. Buchnaster, 44 L. J. M. 0. See also 17 Geo. 2, c. 38, s. 29, 180. 11. [e) 42 &43 Yiet. c. 49. {h) Skingley v. Surridge, 11 (/) Reg. v. Price, L. E. 5 M. & ^Y. 503. Q. B. D. 300. {c) L. Sf- N. ir. Hail. Co. V. (g) 11 e^ 12 Yict. c. 43. Giles, 33^J. P. 776, 801. (h) Sweetman v. Guest, L. E. 3 Q. B. 262. 376 DISTRESS FOR POOR RATES. Part III. a lodger might be distrained for rates due from the Chap. XIII. landlord (/). Second distress. What the rate must show. Evidence of the rate. Demand of rate. What is a sufficient demand. In some cases a second distress may be made for the same rates ; as where the party has been prevented from distraining originally by violence (/.■). A rate made for the relief of the poor must show by intrinsic or other evidence for what purpose it was made ; and if it does not do so the Court will not compel justices to issue their distress warrant for levying such a rate (/). The production of the book containing the poor rate, with the allowance by the justices, is, if the rate is made in the form prescribed by law, jy^'imd facie evidence of the making and publication of the rate (in) . An appellant against a distress warrant, issued to enforce payment of poor rates, cannot, under sect. 7 of 17 Greo. II. c. 38, avail himself of any objection which ho might have urged against the rate itself on appeal to the sessions under sect. 4. Nor will the Com't grant a mandamus to justices to hear such appeal against the warrant, if the application discloses no grounds of appeal other than the grounds which might have been urged against the rate [n) . As it is a maxim in oiu- law that no man shall be punished without having an opportunity of first being heard in his defence, the rate must first be demanded of the party who is liable to pay it (o) . And the demand must be for the sum actually due (p). It has been decided in a case of distress for taxes, that if a party (?') Peppercorn v. Hoffman, 9 M. & AV. 618. {k) Lee V. Cooke, 2 H. & N. 584; 3 H. &N. 203. (/) Reg. V. Eastern Counties Rail. Co., 5 El. & Bl. 974. (m) 32 & 33 Vict. c. 41, s. 18. {n) Reg. v. //. of Kent, 16 L. T. N. S. 673. (o) Rex v. Benn ^- Church, 6 T. E. 198. See al&o Painter V. Liverpool Neiv Gas ^' Coke Co., 3 Afl. & Ell. 433. {p) Hurrell v. Wink, 8 Taunt. 369. DEMAND OF KATE. 377 from whom such taxes are due has an intimation that Part HI, they have been called for by the collector, that is sufii- ^Pap.XlII. ciont evidence of a demand to make the distress for the arrears of taxes legal ; and it is not necessary tliat the specific sum due should have been demanded pvvHondlhj of the householder, or that the refusal to pay should be to the collector himself («/). And after the demand a reason- After demand able time must elapse previous to the distress, in order that timTmust the party may have an opportunity of complying ^^'itll elapse before such demand (r). Where an assessment was made for poor rates, and demanded of a person who subsequently died, and a distress was levied, and tlie waiTant served on his representatives ; it was held that an action would lie against tlie distrainor for distraining the goods in the hands of the deceased's representatives, if no demand of the money had been made upon the representatives ; but that it was doubtful whether sucli a distress would be lawful after a previous demand of the money made upon the representatives (.s) . Wliere there is a remedy by distress, the rate cannot be No action recovered by action it) ; but in a case wliere certain duties jg .^ remedy- were required to be paid by shipo'uniers, and on non- ^7 distress, payment the ships were to stand charged with the pay- ment of the same ; it was held that a remedy was allowed either by action or distress (») . If the rate, when demanded, is not paid, the chiu'ch- Complaint, wardens and overseers, or any of them, may make com- plaint thereof to a justice of the peace of the county, &c., and obtain a simimons for the party, and serve it {x) . (q) Bex V. Ford, 2 Ad. & Hilary Term, 59, 2. :EM. 58S; lie(/.Y. J J. of Glou- {t) Danby v. JVatson, 36 cester, 24 J.' P. 39 (church- L. T. N. S. 412. rate case). (?<) Shepherd v. Hills, 11 {r) Gibbs V. Stead, 8 B. & Exch. 55. C. 528 (distress for land tax). {x) Per forms, see Appen- (s) Stevens v. Evans, 2 BiuT. dix C. ( 1 ) and (2) ; Arclibold's 1152. See also Wallis v. Poor Law, hj Glen, 14th ed. Heivet, Guildhall Sittings, p. 1001. 378 DLSTRESS FOR POOR RATES. Part III. Chap. XIII. What must be proved. Consolidation of proceedings for the re- covery of rates. Summons for non-payment of rate. Service of summons. Proof of service. It must be proved on oatb. thai the party was rated, and had neglected to pay for seven days after demand (ij) ; and if the defendant do not appear, proof on oath must be given of the due service of the summons (;:). By the statute 25 & 26 Yict. c. 82, s. I, it is pro%dded that " where any number of local rates and taxes, whether of the same or different kinds, are due from the same per- son, the rates or taxes so due may be included in the same information, complaint, summons, order, warrant, or other document required by law to be laid before justices, or to be issued by justices; and every such document as aforesaid shall, as respects each rate or tax comprised in it, be construed as a separate document ; and its validity as respects any one rate or tax shall not affect its validity as respects any other rate or tax comprised in it." By the statute 12 & 13 Yict. c. 14, s. 5, it is enacted that " every summons to be issaed against any person for non-payment of any sum for wliicli he or she is or shall be rated or assessed shall be directed to such j^erson, and may be in the form in the schedule to that Act annexed (a) or in any form to the like effect." It may be issued by one justice, and served by any churchwarden or overseer of the poor, or surveyor of the highways, respectively, or constable, or other person, to whom it shall be delivered for that purpose, upon the person to whom it is so directed, by delivering the same to the party ]3ersonally, or by leaving the same with some person for him or her at his or her last place of abode, or upon the premises where the last place of abode is not known {b) ; and the person who shall serve the same in manner aforesaid shall attend at the time and place, and before the justices in the said summons mentioned, to depose, if necessary, to the ser-sdce of the said summons. (y) 54 Geo. 3, c. 170, s. 12. C. (3). (s) 12 Vict. c. 14, s. 5. _ {b) 31 («) For form, see Appendix s. 39. & 32 Yict. c 122, issue a war- rant. WAKIJANT OF 1)1.STKE88. 379 After tliG party summoned for uoii-payment of the rate Part III. attends, but does not show sufficient cause for its non- ^hap.XllI. payment, the justices will grant a distress wan^ant against Warrant of Imn(c). If a rate be legal, however inconvenient and ^^'^ .' . . , 1 (• • 1 11 \vnen justices oppressive the mode of rating may appear to he, and how- are bound to ever much the justices may be convinced of this, they are bound to issue their warrant of distress (d) ; and they are also bound to enforce the rate, if it appears to be good on the face of it, and has not been appealed against ; and they cannot inquire whether it is retrospective or invalid {r) . But the Court of Queen's Bench will not grant a rule to inyalii} or). directed. l\y the statute 12 «t 1'6 Viet. e. 14, s. 1, it is enacted Costs, that " it shall bo lawful for all justices of the peace, if in their discretion they shall so think fit, in any waiTant of distress they shall make and issue for the levying of any sum to which any person is ik^w or may hereafter be rated or assessed, in or by any rate or assessment for the relief of the poor, or in or by any other rate or assess- ment, which by law now or hereafter is or shall be du'ected to be enforced or recovered in the same manner as a poor rate, or in any waiTant for the levying of any arrears of the same, to order that a smn such as they may deem reasonable, for the costs and expenses which such overseers, or the persons applying for such warrant, shall Order for have incurred in obtaining the same, shall also be levied ^^^T^^o costs, of the goods and chattels of the person or persons against whom such warrant shall be granted, together with the reasonable charges of the taking, keeping, and selling of the said distress." Previously to this Act jiarish officers levying a poor rate under a warrant of distress could retain of the goods sold the necessary expenses of the distress and sale {c). In a case decided on the Act, where the plaintiff was assessed for poor rates which he did not pay, nor did he appear before the justices when summoned, and the justices issued a warrant directed to the overseers of the parish to levy a distress on his goods, and for a (z) Reg. V. Handsley, JJ. of {h) Reg. v. Ellis and Green- Bunileg, L. E. 7Q. B.D. 398. wood, supra. {a) Reg. v. Ellis and Green- {c) Moyse v. Cocksedge, wood, 12 L. J. M. C. 20. WiUes, 636. o. c c 386 DISTRESS FOE POOR RATES. Part III. Chap. XIII. Broker's charges. Commitment in default of distress. Warrant of commitment. Order for im- prisonment. fui'tlier sum of 6s. for costs incurred by the said overseers, and the plaintiff tendered to the deputy of the overseers the amount of the rate, but not the costs ; it was held that the justices had power to award the costs to the parties applying for the warrant (d) . By the statute 39 & 40 Yict. c. 61, s. 31, it is enacted that " in all cases where a warrant of distress is issued for the recovery of a poor rate, the person against whom the same is issued shall be liable to pay the costs of such warrant, and of tlie broker, or other officer, for his attend- ance to make the levy, although such person may tender the amount of the rate before any levy is made." By the statute 12 & 13 Yict. c. 14, s. 2, it is enacted that " when to any warrant of distress for the levying of any sum or sums, to which any person or persons may hereafter be rated or assessed in or by any rate or assess- ment, it shall be returned by the constable or person having the execution of such warrant that he could find no goods or chattels, or no sufficient goods or chattels, whereon to levy such sum or sums, together with the costs of or occasioned by the levying of the same, it shall be lawful for any two or more justices of the peace before whom the same shall be returned, or for any two or more justices of the peace for the same county, riding, division, liberty, city, borough, or place, if in their discretion they shall so think fit, to issue their icarrant of commitment (e) against the person with relation to whom such return shall be so made as aforesaid, in the form in the schedule to that Act annexed (./), or in any form to the like effect, and thereby order such person to be imprisoned in the common gaol, or house of correction, for any time not exceeding three calendar months, miless the sum or sums (d) Wcdsh V. Southwell, 6 (e) Reg. v. //. of New Ex. 150. See also Davies v. Sarum, 20 L. T. N. S. 207. Pedley, 3 L. J. C. P. 120. (/) For form, see Appen- dix C. (G). COMMITMENT. 387 tlieroiii mentioned .sliull Le sooner paid ; and every such Part III. warrant of commitment made or issued for default of ^ P distress as aforesaid, shall be made as well for the non- pa>nnont of tlie costs and expenses so as aforesaid incun^ed Costs. in oLtaining sucli warrant of distress, if the same shall be so ordered as aforesaid, and the costs attending the said distress, and also the costs and charges of taking and conveying the part}^ to prison (the amount of such costs, expenses, and charges being stated in such wan-ant of commitment), as for the non-payment of the sum or sums alleged to be due for the said rates respectively " () 41 Geo. 3, c. 23. 46. 392 DISTRESS FOR POOR RATES. Part III. Chap. XIII. Place ■where appeal may be had. Place where distress may- be levied. for wliich sucli assessment was made, but iu any otlier place within the same county or precinct ; and if sufficient distress cannot be found within the said county or precinct, on oath made thereof before some justice of any other county or precinct, such goods may be levied in such other county or precinct by virtue of such warrant and certificate ; and if any person shall find himself aggrieved by such distress as aforesaid, it shall be lawful for such person to appeal to the next general or cpiarter sessions of the peace for the county or precinct where such assessment was made, and the justices there are thereby required to hear and finally determine the same." And by the statute 54 Geo. III. c. 170, s. 12, it is enacted that '* the goods and chattels of any person or persons neglecting or refusing to pay any sum or sums of money legally assessed on and due from him or them in respect of any rate for the relief of the poor, &c. of any parish, to^mship, or hamlet, for the space of seven days after the same shall have been legally demanded of him or them, shall and may be distrained, not only mthin such parish, township, or hamlet, but also within any otlier parish, township, or hamlet within the same county, riding, division, or jurisdiction; and if sufficient distress cannot be found within the same county, riding, &c., then upon oath thereof made before any one or more justice or justices of the peace of any other county, riding, &c. in which any of the goods or chattels of such persons shall be found, which oath such justice or justices are hereby required to administer and certify by endorsing in his or their respec- tive handwriting his or then- name or names on the warrant granted to make such distress, the goods and chattels of the said person or persons so neglecting or refusing to pay as aforesaid shall be subject and liable to such distress and sale in such other county, riding, &c. where the same shall be found, and may by virtue of such warrant and certificate be distrained and sold in the same manner as if the same had been found within the parish, HIGHWAY KATES, 393 township, or hamlet, in or for which such rate had been Part III. made or was due." Chap. XIII. Tlio Court will not grant a certiorari to remove a warrant of distress to levy poor rates into a higher Court {t). Highway rates are recoverable by distress in the same U- High- manner as rates for the relief of the poor («). As we have ^ ^ ^^ ®^* seen, the Summary- Jurisdiction Act, 1879, does not affect or apply to proceedings for the recovery of higliway rates {x). By the statute 12 & 13 Yict. c. 14, s. 1, it is enacted that " in any w^arrant of distress under the statute of 43 Eliz. c. 2, and 5 & G Will. IV. c. 50, which justices shall issue for the levying of highway rates, or any other rate or assessment which by law then or tlioreafter is or shall be directed to be recovered in tlie same manner as a poor rate, or in any waiTant for the levpng of any an-ears of the same, it shall be lawful for them to order that a sum, such Recovery of as they may deem reasonable, for the costs and expenses *^°^ ^' which such overseers and surveyors, or the persons apply- ing for such w^arrant, shall have incm-red in obtaining the same, shall also be levied of the goods and chattels of the person or persons against whom such warrant shall be granted, together with the reasonable charges of the taking, keeping, and selling of the said distress." One warrant of distress may be issued against any How the number of persons neglecting or refusing to pay the te^^irected^^ rate (/y). The warrants may be directed to the surveyors of the To whom the highway (or clerk to the highway board, mider 27 & 28 teXected!^ Yict. e. 181, s. 35), and to the constable of the parish or township, or to any other person or persons, or to any one {t) Ex parte Taunton, 1 {x) Reg. v. Price, L. E. 5 Dowl. Eep. 54. Q. B. D. 300 ; ante, p. 375. {u) See 12 & 13 Yict. c. 14 ; (y) Sect. 3 of 12 & 13 Yict. 13 & 14 Yict. c. 99, and other c. 14. special statutes. 394 HIGHWAY RATES. Part III. or more of tTiem, as by tlie justices granting the same shall Gaap.XIII. |3Q deemed fit (z). Payment or tender of rate. Stay of pro- ceedins's. Appeal. In all cases where any proceedings shall be taken for payment of these rates, if at any time before the defaulter shall be lodged in prison for non-]3ayment thereof, or where there is no sufficient distress, such person shall pay or tender to the surveyor of highways, or other person authorized to collect or receive such rate, the sums so sought to be recovered, together with the amount of all costs and expenses up to that time incurred in the pro- ceedings so taken to compel payment thereof as aforesaid, then the person to whom such sum and costs shall be so paid or tendered shall receive the same, and thereupon no further proceedings for the recovery of the same shall be had or taken {a) . Appeal by a person aggrieved lies against any rate or order made by a justice in jiursuance of this Act, as against the appointment of surveyors (b) ; but it does not lie by a surveyor against the disallowance of an item in his account at petty sessions {c). After a highway rate for a parish has been regularly made and assessed, and an occupier of premises included in such rate has neglected to appeal within the time allowed by the statute for that purpose, he cannot after- wards successfully set up a claim to exemption from that particular rate; and under the statute 11 & 12 Yict. c. 44, s. 5, the Court will grant a rule to compel the issuing of a distress warrant for the amount, where the justices applied to for that purpose refuse to issue their warrant after hear- ing the grounds of such exemption, even though the claim of exemption appear to be a substantial one {d). (z) 12 & 13 Vict. c. 14, s. 4. (a) Ibid. s. 6. lb) Reg. y.JJ.o/Si.Alban's, 3 B. & C. 698. (c) E. V. //. of Leicester, 8 E. & B. 557. (d) Beff. V. //. of Cford, 18 L. J. M. C. 222 ; Overseers TAXE8. 305 By sect. 86 of the Taxes Management Act (e), 1880 :— Part III. Chap. XIII. " (1.) If a person refuses to pay the sum charged upon . — him by virtue of the Land Tax Acts, the Tax Acts, or this ^^^- '^*^^^- Act, on demand made by the collector, according to the assessments and warrants (/) to him delivered by the Land Tax and General Commissioners, such collector may, and he is thereunto authorized and required, for non-pay- ment thereof, to distrain upon messuages, lands, tenements, Distress by and premises charged with such simi of money, or to dis- rgfusaUo'pav train the person so charged by his goods and chattels, and all such other goods and chattels as the collector is hereby authorized to distrain, without any further authority from the said respective commissioners for that purpose than the warrant to such collector delivered on his appoint- ment. " (2.) For the pm-pose of so levying a distress, a collector He may vmder J 1x111 1 ^ £ J.1 •! warrant break may, upon warrant under the hands and seals oi the said ^ houses, respective commissioners, obtained for that purpose, break open (r/) in the daytime any house or premises, calling to his assistance any constable or other peace officer for the parish, group, or division where any refusal, neglect, or resistance shall be made. And it shall be the duty of all constables or other peace officers, when so requii'ed, to aid and assist the collector in the execution of such warrant and in levying the distress in the house or premises. " (3.) A levy or warrant to break open shall be executed Levy, by or under the direction and in the presence of the collector. *' (4.) Every distress levied by a collector shall be kept for the space of five days at the costs and charges of the person so refusing to pay. of Birmingham Poor, In re {/) For form, see App. D. Birmingham Neiv Library, 10 (18)- Q. B. 868, distiuguisliingi^ey. {g) For warrant to break V. //. of Salop, 13 Q. B. 654. open, see App. D. (21). (fi) 43 & 44 Vict. c. 19. 396 TAXES. Powers of (/() 33 Geo. 3, c. 00, may be used in re- covery of arrears. Part III. " (5.) If the said person does not pay the respective sums Chap. XIII. q£ money so due witliin tlie said five days, then the said distress shall he appraised by two or more of the in- habitants where the said distress is taken, or other sufficient persons, and tliere be sold by public auction by the said collector or his deputy for pajonent of the said money ; the overplus coming by the said distress (if any there be), after deducting the said money and also the costs and charges of taking, keeping, and selling the said distress, which costs and charges the said officer is hereby autliorized to retain, shall be restored to the owner thereof. " (6.) The provisions in regard to warrants of distress contained in an Act passed in the thii-ty-third year of His late Majesty King George the Thiixl, intituled 'An Act to authorize justices to impose fines upon constables, over- seers, and other peace and parish officers for neglect of duty, masters of apprentices for ill-usage of such their apprentices, and also to make provision for the execution of warrants of distress granted by magistrates,' shall aj)ply to levies and distraints made by collectors for recovery of the duties or land tax." Where A. by the trusts of his father's will was allowed to use the furniture in the mansion of B. during his life, and was prohibited from removing it thence without the consent of the trustees ; it was held that such fiu-niture could not be distrained for A.'s personal taxes retm-ned as payable at the mansion of B., and that it did not fall within the description of " such other goods and chattels " as might be distrained by force of the statute 43 Geo. III. c. 99, s. 33 (/). Collectors By sect. 87, " if a collector advances and pays over to the advancinor ■^^ i o • i i £ r duties may coUector 01 mland revenue any sum ot money ior or on (A) See post, -p. 405. {{) Shaftesbury {Earl) v. Russell, 3 D. & E. 84. This statute is repealed by the Taxes Management Act, 1 880. But see sect. 8G, sub-sect. (1), as to the words " such other goods and chattels." TAXES. 397 accoimt of the land tax or the duties assessed on any other Part III. person, Avhether at his request or not, such collector may, P' in default of repayment to him at any time within the levy the sum space of six months after such payment, levy the laud tax or the duties hy the like ways and methods as such collector might have levied the same before such payment thereof to such collector of inland revenue, and as if the same had not been paid or satisfied." By sect. 89, " if any person shall refuse or neglect to pay Commis- any sum charged upon him by virtue of the Tax Acts or ^o^il^it^e^ this Act within ten clear days after demand as aforesaid, faulter. and no sufficient distress can or may be found whereby the same may be levied, the Greneral Commissioners may by warrant under their hands and seals commit {k) such per- son to prison, there to be kept without bail until payment shall be made of that sum or security given for pajTuent thereof, together with such further sum as the said commis- sioners shall adjudge to be reasonable for the costs and expenses of apprehending and conveying to prison such person ; and every such person shall be detained and kept in prison according to the tenor and effect of such warrant." By sect. 90 provision is made in case of removal by Committal which the General Commissioners grant a certificate to ^^[^^.^^3 the commissioners acting for the parish to which the per- removed, son has removed, empowering them to distrain (/) ; and by sub-sect. (3), where no sufficient distress can be found witliiu the district where the defaulter may have removed, the commissioners are authorized by warrant to commit {k) such defaulter to prison. By sect. 105, sub-sect. (1), every schedule of arrears shall remain with the General Commissioners for forty days ; and by sub-sect. (3) the commissioners may issue fresh warrants to collect such arrears within such forty (/c) For warrant of (.'(mmiit- {I) See App. 1). (19) and ment, sec App. D. (22). (20). 398 DISTRESS UNDER ORDERS AND CONVICTIONS OF JUSTICES. Part IIT. (lays ; and by sub-sect. (4) sueli fresb \varraiits may be ' ^ '^ directed to the collector or to auy other person whom the commissioners shall think proper, with authority to levy by distress and sale in the manner directed by the Tax Acts, or this Act, the sums in arrear, together with all costs and expenses attending the said process and the execution thereof ; and the smns so levied, after deducting the said costs and expenses, shall be paid to the collector of Inland lievenue, or otherwise as the Board may appoint, and shall be discharged from the schedule. A tax collector who wishes to demand a tax and levy a distress, is justified in calling in and admitting a constable into the house, and the constable is justified in remaining in the house if the o^iier threatens an assault {m) . It has been held that the 10th section of the Judicatm-e Act, 1875, does not so far assimilate the rules in the winding up of companies to the rules in bankruptcy as to give a collector of taxes a right to distrain on the goods of a company in liquidation (n). Section II. — Distress for the Enforcemont of Orders coid Convictions of Jiistice-s. It only now remains for us to treat upon the mode prescribed by law for the enforcement of orders and convictions of justices. Power of a Where a conviction adjudges a pecuniary penalty or issue^warrant Compensation to be paid, or where an order requires the of distress for payment of a sum of money, and by the statute authorizing penalty, or such couviction or Order such penalty, compensation, or compensation g^^^^^ q£ ^^ouey is to be levied upon the ffoods and chattels on conviction, '' j. o (?«) Hex V. Clarlc, 4 L. J. (ti) lie Regent United Ser- M. C. 92. vice Stores, 8 Ch. I). 616. POSTPONEMENT OF WARRANT. 399 of tlie defendant by distress and sale thereof, and also in Part III. cases where by the statute in that behalf no mode of rais- '^J^ap.Xlli. iug or levying snch penalty, compensation, or sum of or of sum re- money, or of enforcing the payment of the same is stated paid\y any or provided, the justice or justices making such conviction order, or order, or any justice of the peace for the same county, may issue his or their warrant of distress (o) for the pm'pose of levying the same (p) ; or may commit the party to prison according to the mode prescribed by the particular statute under which the proceedings may have been taken. In most cases a warrant of distress may be had in the first instance ; but under certain Acts, /. c. , the Game Act, and the Acts relating to injiuies to the person, and malicious injimes to property, the conviction can only be enforced by commitment {q). Where distress is re- quu-ed by statute (as under the Licensing Act, 1872), a warrant must be issued, notwithstanding the provision of sect. 19 (r). The justices have power to postpone the issuing of snch Power to a w\arrant until such time, and on such conditions, if any, fssuim^of a*^ as to the Com-t may seem just (s) ; but where justices warrant, made an order for a warrant of distress to be served on a retired overseer, who had not paid over certain of his accounts on going out of office, and commanded the suc- ceeding overseers to distrain for the balance, and, a doubt being raised whether the balance was correct, the justices ordered the overseers to suspend and not execute the war- rant of distress, and the overseers nevertheless distrained ; it was held that the justices had no power to suspend the (o) For form, see App. D. (r) Supra. See H. v. //. of (1) and (2). Newcastle, Ex parte Broic7i, {p) 11 & 12 Yict. c. 43, 26 W. E. 727; In re Cleiv, 8 s. 19. a B. D. 511 ; li. V. Paget, (fj) Stone's Practice (1882), L. E. 8 Q. B. D. 151. p. 164. (*)42&43 Vict. c. 49, s. 21. 400 DISTRESS UNDER ORDERS AND CONVICTIONS OF JUSTICES. Part III. order on account of a doubt as to tlie correctness of tlie Chap. XII I. balance (t). Exemptiou of The wearing apparel and bedding of a person and his appard &c. f^miljj •'^nd the tools and implements of liis trade to the value of 61., are exempt from a distress issued by a Court of summary jurisdiction (it). If the infor- mation be dis- missed witli costs, the costs may be recovered by- distress upon the prosecu- tor, -ft-ho in default may be committed. The cost3 must be spe- cified in the order of dis- missal. By the 11 & 12 Yict. c. 43, s. 2G, it is enacted that " where any information or complaint shall be dismissed with costs, the sum which shall be awarded for costs in the order for dismissal may be levied by distress (x) on the goods and chattels of the prosecutor or complainant, and in default of distress or payment such prosecutor or com- plainant may be committed (y) to the house of correction or common gaol, for any time not exceeding one calendar month, unless such sum and all costs and charges of the distress, and of the commitment and conveying of such prosecutor or complainant to prison (the amount thereof being ascertained and stated in such commitment) shall be sooner paid." By sect. 18 of the same statute it is enacted that "the sums so allowed for costs shall in all cases be specified in the order of dismissal." And also " costs specified in a conviction or order of dismissal shall be recoverable in the same manner and under the same warrants as any penalty or sum of money adjudged to be paid in and by such con- viction or order is to be recoverable ; and in cases where there is no such penalty or simi to be thereby recovered, then such costs shall be recoverable by distress and sale of the goods and chattels of the party, and in default of such (^) Barons v. Luscombe, 3 Ad. & Ell. 589. («)42&43yict. c. 49, s. 21, sub-s. 2. See the provisions of the Law of Distress Amend- ment Act, 1888 (51 & 52 Yict. c. 21), s. 4. {x) For form, see App. D. (13). {ij) For form, see App. D, (14). RECOVERY OF COSTS. 401 distress, by imprisonment, with or without hard labour. Part III. for any time not exceeding one calendar month, unless ^hap.XIII. such costs shall be sooner paid " (::). And where the conviction orders imprisonment, and not Where there pa^onent of a penalty, or where the order is not for pay- payment'^^or°^ ment of money, but that some act shall be done, and for *^^ order is . . that some act imprisonment m case oi deiault, the justices may order shall be done. theii' warrant of commitment ; and where by such couA'ic- tioii or order any sum for costs shall be adjudged to be paid by the defendant to the prosecutor or complainant, such sum may, if the justice or justices think fit, be levied by warrant of distress ; and in default of distress, the de- fendant may, if such justice or justices think fit, be com- mitted for a further term of imprisonment, to commence on the termination of the imprisonment which the offender is abeady undergoing («). By 11 & 12 Yict. c. 43, s. 19, it is enacted that, " when- Committal to ever it shall appear to any justice of the peace to whom distress^would application shall be made for a warrant of distress that be ruinous, or the issuing thereof would be ruinous to the defendant and are no goods, his family, or wherever it shall appear to such justice by the confession of the defendant, or otherwise, that he has no goods or chatteh whereon to le^y such distress, then it shall be lawful for such justice, if he shall deem it fit, instead of issuing such warrant of distress, to commit such defendant to the house of correction, or if there be no house of coiTection within the jurisdiction, then to the common gaol, there to be imprisoned, with or mthout hard labour-, for such time and in such manner as by law such defendant might be so committed in case such warrant of distress had issued, and no goods or chattels coidd be found whereon to levy such penalty or sum and costs as aforesaid." (z) 11 & 12 Vict. c. 14, («) 11 & 12 Vict. c. 43, s. s. 18. 24. For forms, see App. D. (8), (9), (10), (11), and (12). O. 1) I) 402 DISTRESS UNDER ORDERS AND CONVICTIONS OF JUSTICES. Part IIT. Chap.XIlI. Extension iindcr sect. 21 of the Sum- muiy Juris- diction Act, 1879. Defendant may be allowed to go at large. When the warrant is returnable. And by sect. 21, sub-sect. 3, of the Summary Jurisdic- tiou Act, 1879 {b), " wlicre a person is adjudged by the conviction of a Coiu't of summary jimsdiction, or in the case of a sum not a civil debt by an order of such Court, to pay any sum of money, and on default of payment of such sum a warrant of distress is authorized to be issued, and it appears to the Court of summary jurisdiction, to whom application is made to issue such warrant, that such person has no goods whereon to levy the distress, or that in the event of a warrant of distress being issued his goods •will be insufficient to satisfy the money payable by him, or that the levy of the distress will be more injurious to him or his family than imprisonment, such Coiu-t, instead of issuing such warrant of distress, may, if it think fit, order the said person on non-payment of the said sum to be imprisoned for any period not exceeding the period for which he is liable under such conviction or order to be imj)risoned in default of sufficient distress." This section is more comprehensive than sect. 19 of the 11 & 12 Yict. c. 43, and must be read in substitution of parts of that section. Such parts of sect. 19 as are incon- sistent with this section are repealed by sect. 55. The justice after issuing the w\arraiit of distress may suffer the defendant to go at large, or order him into custody until a return be made to such warrant of distress, unless he gives security by recognizance. If he fail to re-a]3pear on his recognizance, the justice may transmit the recognizance to the clerk of the peace, to be proceeded uj^on in the same way as other recogni- zances (c). The warrant of distress must be made returnable on a day certain ; for if no return day is fixed, and the defen- dant is ordered into custody until such time as the return is made under the above section {(/), the imprisonment {b) 42 & 43 Vict. c. 49. s. 20. (c) II & 12 Vict. c. 43, {(/) Ibid. WARRANT OF DISTRESS. 403 would be for an iudefiuite period, and the justice might be Part III. subjected to an action (e). Chap. XIII. If after delivery of the warrant of distress to the con- How the war- stable to whom the same shall have been directed to be backed.''^^ ^^ executed, sufficient distress shall not be found within the limits of the juiisdiction of the justice granting such warrant, then, upon proof being made on oath of the handwriting of the justice granting such warrant, before any justice of any other county or place, such justice of such other county or place shall thereupon make an indorsement (,/) on such warrant, signed with his hand, authorizing the execution of such warrant within the limits of his jurisdiction ; by virtue of which said warrant and Execution of indorsement the penalty or sum aforesaid, and costs, or so '"'^^^''■^ ■ much thereof as may not have been before levied or paid, shall and may be levied by the person bringing such warrant, or by the person or persons to whom such warrant was originally directed, or by any constable or other peace officer of such last-mentioned county or place, by distress and sale of the goods and chattels of the defendant in such other comity or place (g) . Where there is an appeal against the conviction or order, "Where an and the appellant is bound by recognizance to prosecute pendino-! it, the warrant of distress to enforce it should not be issued pending the appeal (/?) . In a case under the statute 4'2 Geo. III. c. 90, s. 61, which enables a magistrate to make an order for payment of servants' wages in certain cases, and directs that in case of refusal or non-payment of any sum so ordered for twenty-one days after such determination he may issue his warrant of distress, but it gives an appeal to the sessions ; it was held that, twenty- one days having elapsed between the making of such order (e) Per Coleridge, J., in ([MONS. 407 And in such case tlie jnstice wlio issues the warrant Part III. bond fide is protected from any action hij reason of any ^ t>'^ defect in such conviction or order, or for any want of juris- Protection to diction in tlie justice or justices who made the same ; such action (if any) shall be brought against the justice or justices who made such conviction or order [x). In order to protect justices from an action of trespass for issuing a warrant of distress, all those facts must appear upon the face of the warrant which are necessary to give jurisdiction to the justices in the subject-matter. It was held, there- fore, that a warrant of justices under 33 Geo. III. c. 54, s. 15, for distress against the goods of the stewards of a friendly society for refusal by the stewards to pay a certain sum alleged to be due for relief to an individual, who upon oath stated himself to be a member, was defective in not adjudicating that he was a member, that the sum awarded was due, and that the parties against whom the warrant issued were the stewards. The Court would not imj)ly such adjudication from the recital of the information on which the order was made in which any of these facts were asserted (//) . Under some statutes it is necessary before issuing a Service of , . , , , 1 p 1 J summons be- distress warrant to serve a summons upon deiendant fore issuino- requiring him to show cause why such distress warrant ^^istresa war- should not issue. So where a plaintiff, who vv^as a steward of a society, not having paid money in obedience to an order of two justices under the statute 10 Greo. IV. c, bQ, s. 28, the justices icithout further summons issued a distress warrant, under which the plaintiff's goods were seized ; it was held that the seizure was not justified by the statute ; Denman, C, J., remarking: "It appears to us that if the proceedings are under the 28th section, and the justices have made an order for payment of money analogous to {x)\\ k 12 Vict. c. 44, s. 3. (y) Day v. Kimj, 5 L. J. M. C. 1.30. 408 DISTRESS UNDER ORDERS AM) CONVICTIONS OF JUSTICES. Part III. tho award of arbitrators under the 27tli section, a distress Cnap.Xlll. -^Yf^i-pjiiit cannot issue for non-compliance witli such an order witliout a previous summons to the party, who may have various reasons to assign against the issuing of the distress wan^ant. He may not have knowledge of the order ; he may be ready to pay the person named in the order, if he could find him ; he may actuallj^ have tendered or paid the money ; all which reasonable excuses would be unavailable if the party to whom the money is ordered to be paid could e.f parte, and without notice, obtain a distress warrant " (~). If the defendant does not appear to show cause, the proper course is to issue the distress warrant, and not to Where a issue a warrant for his apprehension (a). ^AHiere the con- demand is BOt .. - T ^ ji 1 ■ 1 necessary. victiou or order adjudges tiie iiayment oi money only on or before a cei-tain day, or forthwith, a demand is not necessary before issuing the warrant. So where commis- sioners of highw^ays w'ere empowered to levy certain tolls, and under the statute 3 Greo. lY. c. 121, s. 41, a penalty might be imposed on persons who fraudulently passed through the tiu'npike without paying, it was held that a demand of the penalty was not necessary under the above section previous to issuing a distress warrant (h). The order for It is not necessary that the order should be dra^^•n up warrant need ^i^^^cler the hand and seal of the justices before issuing the not be under distress Warrant ; the pronouncing the order is sufficient to j ustif y the issuing of the wan'ant (r) . And a warrant of distress granted by two justices on a conviction for selling spirituous hquors without a licence was held good, though not under the seak of the justices ; (z) Hammond v. BendysJiP, [h) Barnes v. White, 14 L. 13 Q. B. 869. But see Pepper- J. M. C. 65 ; Ex jyarte Thomas corn v. Hoffman, 12 L. J. Ex. Broivn, L. E. 3 Q. B. D. 545. 270. (c) Ratt V. Parkinson, 20 (a) Bessell v. Wilson, 1 E. L. J. M. C. 208. & B. 489. COMMITMENT. 409 it was held sufficient tliough under their hands only ; Part III. "Willes, C. J., remarking, that " a warrant does not ex vi ^tiap.XIII. termini imply an instrument imder seal; it signifies no more than an authority." In all cases of penalties, convictions, or orders, where Commitment the statute provides no remedy in default of distress, the provMes no ^ justice may commit the defendant to prison {d). remedy in This section is now extended to eases in which it is re- distress. turned to a warrant of distress, issued under the authority of the above Act for levying any penalty, compensation, or sum of money, adjudged or ordered to be paid by any conviction or order, that no sufficient goods of the party against whom such warrant was issued can be found, where the statute on which the conviction or order is founded provides no mode for raising or levying such 2:)enalty, compensation, or sum of money, or for enforcing payment of the same, as well as to cases where the statute on which the conviction, or order, is founded authorizes the issuing thereon of a warrant of distress (e) . And where the statute does not direct the penalty or sum ordered to be paid to be levied by distress, but directs that there shall be a commitment in case of non-payment, the penalty or sum shall not be levied by distress, but in default of pajTOient the justices shall order the defendant to be committed (/) ; unless the sum or sums adjudged to be paid, and also the costs and charges of taking and con- veying the defendant to prison, if such justice or justices shall think fit so to order, shall be sooner paid. By sect. 27 of the statute 11 & 12 Vict. c. 43, it is pro- Costs of vided, that " If upon an appeal against a conviction or t^ beVe- °^ order, the appeal is in favour of the respondents, and the covered. Court of Quarter Sessions orders either party to pay costs, (cZ)ll &12Vict.c. 43, s.22. (/) 11 & 12 Vict. c. 43, (e) 21 & 22 Vict. c. 73, s. 5. s. 23. For forms, see App. D. (6) and (7). 410 DISTRESS UNDER ORDERS AND CONVICTIONS OF JUSTICES. Part III. siicli order sliull direct such costs to bo paid to tlie clerk of Chap. XIII. ^]^Q peace of sucli Court, to bo by bini paid over to the party eutitled to the same, and shall state within what time such costs shall be paid ; and if the same shall not be paid within the time so limited, and the party ordered to pay the same shall not be bound by any recognizance conditioned to pay such costs, such clerk of the peace or his deputy, upon application of the party entitled to such costs, or of any person on his behalf, and on j^ayment of a fee of Is., shall grant to the party applying a certificate (g) that such costs have not been paid ; and upon production of such certificate to any justice or justices of the peace for the same county, &c., they may enforce the payment of such costs by warrant of distress (//), or in default may commit (/) the party in manner therein mentioned, unless the sum due for costs shall be sooner paid." An order giving costs under the statute 12 & 13 Yict. 0. 45, s. 5, being recoverable under sect. 27 of 11 & 12 Vict. 0. 43, is within the second exception of sect. 4 of the Debtors Act, 1869, and may therefore be enforced by commitment and imprisonment, where the party against whom it is made is not bound by recognizance to pay the costs (/.•) . A mistake in ordering costs to be paid directly to the parties to the appeal, instead of to the clerk of the peace, is a mere defect of form, and will not make the order bad for want of jmisdiction, where the certiorari is taken away (/). Minute of In all cases, where by Act of Parliament authority is serve/before gi^eu to commit a person to prison, or to levy any sum Mistake in costs. {g) Per form of Certificate, see App. D. (15). (A) Per form, see App. D. (16). (^■) Por form, see App. D. (17). (k) li. v. Pratt, L. E. 5 Q. 13. 176; Stone's Practice (1882), p. 173. {I) K. v. Binncy, 1 E. & B. 810. SALE OF THE DISTRESS. 4 1 1 upon tlie goods or chattels by distress, for not obeying any Part III. order of a justice or justices, the defendant shall be served Chap. XIII. with a copy of the minute of such order before any issuing war- warrant of commitment or distress shall issue in that ^^^^' behalf, and sucli order or minute shall not form any part of such warrant of commitment or of distress {ai). Provisions have been made with regard to the sale of a Sale of distress by the statute 42 & 43 Yict. c. 49, s. 43. '^^'^'■^''• By sub-sect. 2, it is enacted, that " Save so far as the person against whom the distress is levied otherwise consents in writing, the distress shall be sold by pubHc By public auction, and five clear days at the least shall intervene ^^'^^^^"• between the making of the distress and the sale, and where a written consent is given as aforesaid, the sale may be made in accordance with such consent; " and By sub-sect. 3, " Subject as aforesaid, the distress shall Time Avhen be sold within the period fixed by the warrant, and if no be" sold, period is so fixed, then within the period of fourteen days from the date of the making of the distress, unless the sum for which the warrant was issued, and also the charges of taking and keeping the said distress, are sooner paid ; " and By sub-sect. 4, " Subject to any directions to the contrary given by the warrant of distress, where the distress is levied on household goods, the goods shall not, except with the consent in writing of the person against whom the distress is levied, be removed from the house Removal of until the day of sale, but so much of the goods shall bo l^""!^'^"^*^ impounded as are in the opinion of the person executing the waiTant sufficient to satisfy the distress, by affixing to the articles impounded a conspicuous mark ; and any person romo%dng the said mark shall on summary con- viction be liable to a fine not exceeding IJl. ; " and By sub-sect. 5, " Wliere a person charged with the exe- Wrongful (m) 11 & 12 Vict. c. 43, s. 17. 412 DISTRESS UNDER ORDERS AND CONVICTIONS OF JUSTICES. Part III. Chap. XIII. retainer of produce. Account of costs and chara-es. cuti(^n of a warrant of distress wilfully retains the produce of any goods sold to satisfy the distress, or otherwise exacts any greater costs and charges than those to which he is for the time being entitled by law, or makes any improper charge, he shall be liable on summary conviction to a fine not exceeding 5/. ; " and By sub-sect. 6, " A written account of the costs and charges incun^ed in respect of the execution of any war- rant of distress shall be sent by the constable charged with the execution of the warrant as soon as practicable to the clerk of the Coui't of summary jurisdiction issuing the warrant ; and it shall be lawful for the person upon whose goods the distress was levied, within one month after the le-vy of the distress, to inspect such account without fee or reward at any reasonable time to be appointed by the Court, and to take a copy of such account ; " and By sub-sect. 7, "A constable charged with the execution of a warrant of distress shall cause the distress to be sold, and may deduct out of the amount realised by such sale all costs and charges actually incmu^ed in effecting such sale, and shall render to the owner the overplus, if any, after retaining the amount of the sum for which the warrant was issued, and the proper costs and charges of the execution of the warrant ; " and By sub-sect. 8, " Where a person j)ays or tenders to the constable charged with the execution of a warrant of dis- tress the sum mentioned in such waiTant, or produces the receipt for the same of the clerk of the Com-t of summary jurisdiction issuing the warrant, and also pays the amount of the costs and charges of such distress up to the time of such payment or tender, the constable shall not execute the warrant." Execution of By the statute 44 & 45 Yict. c. 24, s. 5, it is provided, warrant of a |.|^^^ ^ warrant of distress issued in England, when English Court indor.scd in pursuance of this Act, shall be executed, in Deduction of costs and charges of sale. Payment or tender. SCOTCH AND ENGLISH COURTS. 413 Scotland, as if it were a Scotch warrant of poinding and Part III. sale, and a Scotch warrant of poinding and sale, when Chap. XIII. indorsed in piu'suance of this Act, shall be executed, in in Scotland, England, as if it were an English warrant of distress, and Co^rf in Ed*?. the enactments relating to the said warrants respectively land, shall apply accordingly, except that any account of the costs and charges in connection with the execution, or of the money levied thereby, or otherwise relating to the execution, shall be made, and any money raised by the execution shall be dealt with in like manner as if the warrant had been executed within the jurisdiction of the Coui't issuing the warrant." 415 APPENDIX A. FOEMS OF PEOCEEDINGS IN DISTRESS. (1). Warrant to distrain in a House for Rent. To Mr. E. S., my bailiff. I hereby authorize and require you to distrain the goods and chattels in and upon the [house] and i:)remises of C. D., situate and being [No. , street], in the parish of , in the county of , for £ , being quarter's rent, due to me for the same [at Lady-day, Midsummer-day, Michaelmas-day, or Christmas-day last, as the case may be; or " on the day of last "] ; and to proceed thereon for the recovery of the said rent as the law directs. But you are hereby expressly prohibited from taking any property not legally liable to a distress for rent. Dated this day of , 18 . (Signed) A. B. of [or A. B. of by P. Q., his agent]. (2). Warrant to distrain on a Far n) for Rent. To Mr. E. S., my bailiff. I hereby authorize and require you to distrain the goods and chattels [and also tlio cattle and growing crops], in and upon the farm, lands and premises of C D., situate and being at in the parish, &c. [as in No. I, to the end]. 410 APPENDIX A. (8). Iiircii/or// of Goods (/i.sfrdiiicd. An inventory of the goods and chattels [cattle and growing crops] distrained by [E. S., of , as bailiff of and for] A. B., of , Esf[uiro, on the day of , 18 , in and npon the [honse or farm, lands and] premises of C. D., situate and being [No. , street] in the parish of , in the coimty of , for £ , being quarter's rent due to the said A. B. [at last ; o>- " on the day of last "]. 1. In front room on ground floor. — One dining table, one side-board, twelve chairs \_descrihe each article in tliis room intended to he distrained^. 2. In back room on ground floor. — \^IIere describe each article in this room intended to be distrained.^ 3. 4, 5, &c. — \_Here describe in like manner each article in- tended to be distrained in the "front room on first floor ^^ — "back room on first floor'''' — "front room on second floor ''^ — "back room on second floor,'^ &)'c. — "front attic''^ — "back attic'''' — "front kitchen'" — "back kitchen''— "loashhottse^' — "scullery'''' — "wine cellar " — " coal cellar " — "yard'' — "garden " — " coach- house^^ — "stables'^ — "barns," Sj'c, Sfc.^ (4). In the Fields. 1. In the fleld or close called or known as "Greenacre :" cows, calves, oxen, bulls, sheep, lambs, horses, luares, geld- ings, colts, fillies, pigs, \_as the case may be']. 2. In the fleld or close called or knoivti as [name] : haystacks, stacks of [wheat] ; about acres (more or less) of growing crops of [wheat or barley, oats, potatoes, peas, beans, as the case may be~\. 3. Describe in like manner each close and the articles therein intended to he distrained. At the end of the list may {if tvishcd) be added the folloiving toords, or to the like effect, viz. : — "And all other goods, chattels and effects on the said pre- mises," or "and any other goods that may ])e found in and APPENDIX A. 417 about the said premises to pay the said rent and expenses of this distress." But it would be too mdej^nite and incorrect to say, ' ' And all other goods, chattels and effects on the said premises that may he required in order to satisfy the above rent, together with all necessary expenses." Dated this day of ,18. (Signed) E. S., bailiff of the said A. B. [_or A. B. of ]. (5). Notice of Diafrc'ss/of Bent. To Mr. C. D., and all others whom it may concern. Take notice that I [E. S., as bailiff of and for A. B., Esq., your landlord] have this day distrained on the premises in your occupation or possession, named in the inventory [above written, or hereunto annexed], the [cattle], goods, and chattels mentioned in the said inventory for £ , being quarter's rent due to [me or the said A. B.], at last [or on the day of last], for the said premises. And unless you pay the said rent, with the charges of distraining for the same within five days from the service hereof, the said [cattle] goods and chattels will be appraised and sold accord- ing to law. \_Tf cattle or goods removed, mention the place thus: "And take notice, that the said cattle have been re- moved to and are now in the common pound in and for the parish of , in the county of .] Dated this day of , 18 . (Signed) E. S., of Bailiff of the above-named A. B. lor A. B. of ]. (G). Notice of DidrcHs of Growiny Crops, \^'c. To Mr. C. D., and all others whom it may concern. Take notice that I [E. S., as bailiff of and for A. B., Esq., your landlord], have this day distrained on the [farm, lands (). 1', K 418 APPENDIX A. and] premises in jour occupation or possession, mentioned in tlie inventory [above written or hereunto annexed], the [cattle, goods and chattels, and also the] growing- crops men- tioned in the said inventory for £ , being quarter's rent due to [me or the said A. 13.], at last \or on the day of last] for the said [farm, lands and] pre- mises : And unless you pay the said rent, witli the charges of distraining for the same [within five days from the date hereof, the said cattle, goods and chattels will be appraised and sold according to law, and] I shall [or if signed by the bailiff say, "the said A. B. will"] proceed to cut, gather, make, cure, carry and lay up the said crops, when ripe, in the barn or other proper place on the said premises, and in con- venient time sell and dispose of the same in or towards satisfaction of the said rent, and of the charges of such dis- tress, appraisement and sale, according to law. Dated this day of , 18 . (Signed) A. B. of {or E. S. of Bailiff of the above-mentioned A. B.] (7). Request of a Tenant to his Landlord to loithdraio a Dis- tress for Rent, with liberty to mulie a second Distress. To A. B., Esq. Sir, — I hereby request you, for my accommodation, to withdraw the distress for rent made by you on the [farm, land and] premises, situate at , in the county of , now in my occupation as your tenant : And in consideration of your so doing, I do hereby consent, promise and agree that it shall and may be lawful for you at any time [afterwards, or after the day of next] to make a second distress for the said rent, or for so much thereof as shall for the time being remain unpaid, and for the expenses of and incident to such second distress : [And I will also pay you on demand all expenses incurred of and incident to the said first distress to APPENDIX A. 419 the time of Its being withdrawn for my accommodation as aforesaid] . Dated this day of , 18 . Yours, &c., Witness, E. F., of . C. D. (8). Rcquefit of Tenant to the LandhnI or his Bailiff to remain in j^ossession under a Distress for more than five days (a) . To A. B., Esqnire [or to Mr. E. S., bailiff of A. B., Esquire]. Sir, — Fursuant to sect. 6 of the Law of Distress Amendment Act, 1888, I hereby request you not to remove the goods and chattels which you have distrained and impounded for rent on the premises situate at , In the county of , now In my occupation as [your tenant, or tenant of the said A. B.] ; but to keep the said goods and chattels in the place where they are now impounded until the day of next inclusive, for my accommodation, and to give me the oppor- tunity of obtaining money to pay the said arrears of rent with expenses of the distress ; and I also agree to give security for any additional cost that may be occasioned by such extension of time. Dated this day of ,18. Witness, E. F., of . Yours, &c., CD. (9). Notice by the Tenant or Owner of the Goods distrained requiring an Appraisement to be made {h). To A. B., Esquire [«■ to Mr. E. S., bailiff of A. B., Esquire]. Sir, — Pursuant to sect. 5 of the Law of Distress Amendment Act, 1888, I hereby require you to cause an appraisement to be made of the goods and chattels which you have distrained and impounded for rent on the premises situate at , In the county of , now In my occupation as your tenant \_or («) See 51 & 52 Vict. c. 21, s. G. For request to sell within the extended time, see Fonia No. 22. {b) 51 & 52 Yict. c. 21, s. 5. E E 2 420 APPENDIX A. now in the occupation of your tenant, of wliicli goods I am the owner], and I require you not to sell such goods and chattels without such appraisement. Dated this day of ,18. Yours, &c., C. D. [or E. F.] (10). Notice hy the Tenant or Owner of the Goods dis- trained requiring them to be removed to a public Auction Room (c). To A. B., Esquire [or to Mr. E. S., bailiff of A. B., Esquii-e]. Sir, — Pursuant to sect. 5 of the Law of Distress Amendment Act, 1888, I hereby require j-ou to remove the goods and chattels which you have distrained and impounded for rent on the premises situate at , in the county of , now in my occupation as yoiu" tenant [or now in the occupation of your tenant, of which goods I am the owner] to a public auction room, or to [here specify some other fit and proper place'] in order that the said goods may be there sold. Dated this day of , 18 . Yours, &c., CD. [or E. F.] (11). The Appraisement. We, the above-named L. M. and N. 0., having viewed the [cattle], goods and chattels mentioned in [this or the within written] inventory, do appraise and value the same at the sum of pounds shillings and pence (d), £ s. d. As witness our hands the day of ,18. (Signed) L. M. \ . ^ ° ^ ^T ^ ( Appraisers. N. 0. j (c) 51 & 52 Vict. c. 21, s. 5. {d) The amoimt must be wiitten o;it in words and figm-es upon dvily stamped material. APPENDIX A. 421 (12). Notice to Sheriff undcv 8 Anne, c. 14, s. 1, of Rent due to Landlord of Execution Debtor. To the sheriff of the county of , and his under sheriff and baihffs, and all others whom it may concern : Take notice, that the sum of £ is now due and owing to [me or to J. K., of , Esquire], from C. D., of , in the county of , for [one year's, or one half-year's, or one quarter's] rent due on the day of last, of the premises in his occupation at aforesaid ; upon which premises, as I am informed, you have seized and taken in execution certain goods and chattels ; and you are hereby required not to remove any of the said goods and chattels from off the said premises until the said arrears of rent are paid, pursuant to the statute in such case made and provided. Dated this day of , 18 . Yours, &c., J. K. of lor E. F. of , Agent for J. K. of Esquire]. (13). Notice fro)ii Sheriff' to Execution Creditor of Rent being due from the Defendant, and requiring Payment thereof by such Creditor, ^^arsuant to 8 Anne, c. 14, s. 1. ' In the High Court of Justice. Division. Between A. B., plaintiff", and CD., defendant. Take notice, that the sum of £ is due and owing from the above-named defendant to his landlord J. K., of , [&c.. Esquire], for [one year's, or one half-year's, or one quarter's] rent, due on the day of last, for and in respect of the [house or farm, land, and] premises situate at , in the county of , now in the occupation of the 422 APPENDIX A. said defendant, and upon which certain goods and chattels have been seized by the sheriff of shire under the writ of Jieri facias issued in this action [and tlic said sheriflf has had notice of such arrears of rent] : Now I do hereby, as the agent of the said sheriff and on his behalf, give you notice that unless the above-named plaintiff do forthwith pay the arrears of rent due to the said landlord, either to hiui or to his bailiff pursuant to the statute iu such case made and pro- vided, the said sheriff will withdraw from possession of the said goods and chattels under the said writ. Dated this day of , 18 . Yours, &c., L. M. of Agent for the sheriff of shire. To the above-named plaintiff, and to Mr. , his solicitor or agent. (14). Notice to the High Bailiff of a Count ij Court, pursuant to 51 ct 52 Vict, c 43, s. 160. To the high bailiff of the County Court of , holden at , and to his bailiff and officers, and all others whom it may concern : Take notice, that C. D., whose goods you have taken iu execution under a warrant from the said County Com-t, holds the [house or apartments] in which the said goods were taken as tenant thereof to [me or to J. K., of , Esq.] under a lease for years [and three-quarters of another year wanting five days] from the day of , IS , or under a tenancy from year to year, from the day of last, or under a tenancy from month to month from the \_first] day of each month, or under a tenancy from week to week from each \_Saturday\ at the yearly rent of £ , payable [by equal half-yearly or quarterly payments, on the day of , &c., state days of pnrjment\ or at the monthly rent of £ payable [in advance] on the day of each month, or at the weekly rent of £ payable [iu advance] on each \Saturday~\ : And I now [a.s the agent of APPENDIX A. 423 and for the said J. K., and on his behalf,] claim the sum of £ for arrears of the said rent for one year [or two quarters] ending on the day of last, or for two months \_or four weeks] ending on the day of last, as the case may be, which said rent or sum of £ now remains in arrear and unpaid. Dated this day of ,18, (Signed) J. K., of , [or C. D., of Agent for the above-named J. K.] (15). Declaration by Lodger (c). To \_name of superior landlord, or his bailiff, as the case may be~\. Sir, — I, , of , do hereby declare that [jiame of immediate teiiant'] has no right of property or beneficial interest in the furniture, goods and chattels, of which an inventory is hereunto annexed, but that such furniture, goods and chattels are my property [_or in my lawful possession]. I owe \_name of immediate landlord~\ £ on account of rent from to The inventory referred to in this declaration is as follows : — (16). Incentory. 1 Pianoforte, 4 Sofas, 2 Timepieces, &c., &:c. {state articles ivith jjrecision^. To Yours, &c., A. B. (e) See Sharpe v. Foivle and Young, 12 Q. B. D. 385, and Ex parte Harris, H) Q. B. D. 130, ante, p. 102. 424 APPENDIX A. (17). General Ccriificote {/). [Date.] In the County Court of , holden at Pursuant to section seven of the Law of Distress Amendment Act, 1888, I hereby authorise A. B., of , to act as a bailiff to levy distresses for rent in England and "Wales. Signed (L.S.) Judge. (18). Special Certificate (/). [Date.] In the County Court of , liolden at Pursuant to section seven of the Law of Distress Amendment Act, 1888, I hereby authorise A. B., of , to act as a bailiff to levy a distress on the premises of C. D. of , for rent alleged to be due to E. F. of Signed (L.S.) Judge. or Registrar. (19). Form of Statement of Claim for Excessive Distress. The plaintiff has suffered damage by the defendant wrong- fully distraining for arrears of rent of 180, Leather Lane, of which the plaintiff was tenant to the defendant, goods of the plaintiff of greater value than the said arrears and charge of the said distress and appraisement and sale of the goods, although part of the said goods was of sufficient value to satisfy the same, and thereby took an excessive distress, con- trary to the statute in that behalf. The plaintiff claims £ . Place of trial, (Signed) Delivered the day of , 18 . (/) Sec b\ & 52 Vict. c. 21. s^, 7. APPENDIX A. 425 (20). Ditto for not selling for the best Price. 1. The plaintiff was tenant to the defendant of at a rent payable by the plaintiff to the defendant. 2. The defendant seized and sold goods of the plaintiff as a distress for rent of the said premises in arrear. 3. The defendant did not sell the same for the best price that could have been gotten for the same, contrary to the statute in that behalf. Particulars of special damage : — Goods might have been sold for £ — Sold for £ Loss - - The plaintiff claims £ Place of trial, Delivered the day of £ s. d. (Signed) , 18 . (21). Ditto for distraining twice for the satne Bent. The plaintiff has suffered damage by the defendant wrong- fully distraining the goods and chattels of the plaintiff for arrears of rent of the Home Farm, alleged to be due to the defendant, after having already on a former occasion dis- trained goods of the plaintiff for the same rent sufficient to satisfy the said alleged arrears of rent and the costs and expenses of the distress. Particulars of special damage : — {Fill in.) The plaintiff claims £ . Place of trial, (Signed) Delivered the day of , 18 . (22). Request and consent of Tenant to Sell ivithin extended Time. To A. B., of , and to C. D., of , his bailiff. I, the undersigned Gr. H., of , hereby request you to sell [or consent to your selling] the goods and chattels \_if only part of the goods are to be sold, specif/ such pari, and say, " being part of the goods and chattels,"] in and upon the said premises situate at , and which you have distrained for rent, at any time before the expiration of the extended period for which I applied during which I might replevy the same. Witness, M., &c. Dated the day of , 18 . G, H. 426 APPENDIX B. FOEMS OF PEOCEEDINGS ON A EEPLEVY. (1). Notice of proposed Siortics. Take notice, that the sureties whom I propose as my secu- rity in the above action [^here state the proceedimj loluch has rendered the sureties necessanj~\ are \_hcre state the full names and additions of the sureties, whether housekeepers or freeholders, and their residences for the last six montlis, therein mentioning the county or city, j)laces, streets and numbers, if any~\. Dated this clay of , 18 . To the («) (2). Notice to Distrainor of Goods [or Cattle'] intended to he replevied {IS). In the County Court of , holden at Take notice, that A. B., of, &c., whose goods \or cattle] you have distrained, intends to replev}' the same, and has proposed as his sureties for the due prosecution of an action of rejilevin against you in the \Jiere mention the Court in which the action is to he hroug]it~\, E. F., of, &c., and G. H., of, &c., and that if you have any valid objection to make to the pro- posed sureties, or either of them, you must attend at \Jiere insert place of ojfice of registrar], on the day of , 18 , at the hour of , Avhen the bond will be submitted to me for approval. J. K., Eegistrar of the Court. (a) County Com't Rules, 1889, Form 120. By Ord. LI. r. 24 of these rules, all proceedings and documents shall be in forms similar to the forms in the Appendix where the same are appHcable ; and in cases where no forms are pro\'ided parties shall frame the pro- ceedings or documents, using as guides those contained in the Appendix. And by rule 27 of this order no matter shall be added to or taken from anv form hi the Appendix. {h) IbiiL, Form 243. APPENDIX B. -127 (3). Affidavit of Justification (c). I, , of , one of the sureties for the [defendant] make oath and say, That I am a housekeeper [or freeholder, as the case may be~\, residing at \_describing particularly the county or city, the street or place, and the number of the house, if any~\ : That I am worth property to the amount of £ [_the amount required by the practice of the Court\ over and above what will pay my just debts \Jf security in any other action or for any other purpose, add, and every other sum for which I am now security] : That I am not bail or security in any other action or proceeding, or for any other j)erson \_or if security in any other action or actions, add, except for C. 1)., at the suit of E. F., in the Court of , in the sum of £ , for Gr. H., at the suit of I. K., in the Court of , in the sum of £ , specifying the severed actions, icith the Courts in lohich they are brought, and the sums in which he has become bound^; that this my property to the amount of the said sum of £ \_and if security in any other action, S^c, over and above all other sums for which I am now security as aforesaid], consists of [here specify the nature and value of the property in respect of ichich the deponent proposes to become bondsman, as follows : stock-in-trade in my business of , carried on by me at , of the value of £ , of good book debts owing to me to the amount of £ , of furniture in my house at of the value of £ , of a freehold [o?- leasehold] farm of the value of £ , situate at , occupied by , or of a dwelling-house of the value of £ , situate at , occupied by , or of other property, particidarizing each description of property, xcith the value thereof '\, and that I have for the last six months resided at [_describing the place of such residence, or if he has had more than one residence during that period, state in the same manner as above directed^. (4). Bond in Rejjlevin ichere Action to he couDnenccd in High Court of Justice (d). \_Form of Bond as post. No. 7, to the date inclusive :~\ Whereas the above-named C. D. and E. F., at the request of i approve of the said A. B., have agreed to enter into the above-written this bond. obligation, and this security has been approved of by the J- I^-'. registrar of the County Court of , holden at , as \^-^-i Regis- appears by his allowance in the margin hereof : Now the condition of this obligation is such, that if the jionrn/'i'irr a^ siaiiij . {<:) Coimty Court Rules, 1889, Form 121. {) Sec ibid., p. G30. q) Seo ibid., p. 031. 438 APPENDIX 1?. I approve of this bond. W. B., Master. above-boimdeu C D. was tlefendant : And ■wtiereas tlic Honorable Sir , kniglit, one of the judges of her Majestj-'s High Court of Justice [or, "And whereas her Majesty's High Court of Justice "], on the application of the said C. D., did, on the day of , 18 , order that [_7-ecite order for certiorari in the past tense, ex. gr. :] " a writ of certiorari shoidd issue to remove the said action of replevin between the said A. B, and C. D., with all things touching the same, from the said County Court of , holden at , into her Majesty's High Coiu-t of Justice, on the said C. T>. giving security as provided for by the 51 & 52 Yict. c. 34, s. 137:" And whereas the above-named E. F. and G. H., at the request of the said C. D., have agreed to enter into the above-written obligation as his sureties : Now the condition of this obligation is such, that if the above-bounden C. D. do defend the said action in Her Majesty's High Court of Justice with effect, and, unless the said A. B. shall dis- continue or shall not prosecute such action or become nonsuit therein, if the said C. D. do prove before the said High Court that the said C. D. had good ground for believing either that the title to some corporeal or incorporeal hereditament, or to some toll, market, fair or franchise was in question, or that the rent or damage in respect of which the distress in this behalf was taken exceeded twenty pounds, then this obliga- tion shall be void and of no effect, otherwise shall be and remain in full force. ■,-,.■ -, 1 .. C. D. (Seal) Signed, sealed and delivered by the \ -^ above-bounden in the presence of F. G. H. (Seal.) (Sra/.) (21). Memoranduui of Deposit in lieu of a Bond on RemovaL Memorandum made on the day of , 18 : Whereas an action of replevin was on the daj' of , 18 , commenced in the County Court of , holden at , wherein A. B. was plaintiff and C. D. was defendant : And whereas the Honorable Sir , knight, one of the judges of her Majesty's High Court of Justice \_or, "And APPENDIX B. 439 whereas her Majesty's High Court of Justice"], on the appli- cation of the said 0. D., did, on the day of , order that \_7-ecife order for certiorari in j^nst tense, ex. gr. :] " a writ of certiorari should issue to remove the said action of replevin between the said A. B. and C. D., with all things touching the same, from the said County Court of , holden at , into her Majesty's High Court of Justice, on the said C. D. giving security as provided for by the 51 & 52 Vict. c. 34, s. 137:" And whereas the said C. D. has this I approve of day deposited with , Esq., one of the masters of the randum. Division of the said High Court of Justice, the sum W. B., of £ sterling (being the amount fixed by the said ^^ ^^' master pursuant to the said Act) : Now the condition of the said deposit is such, that if the said C. D. do defend the said action in her Majesty's High Court of Justice with effect, and, unless the said A. B. shall discontinue or shall not pro- secute such action, or become nonsuit therein, if the said C. D. do prove before the Division of the said High Court of Justice that the said C. D. had good ground for believing either that the title to some corporeal or incorporeal heredita- ment, or to some toll, market, fair, or franchise was in ques- tion, or that the rent or damage in respect of which the distress in this behalf was taken exceeded twenty pounds, then the said deposit shall be void and returned to the said 0. D., otherwise the same shall be applied and disposed of according to law. (Signed) C. D. [or, C. D., by Q-. H., his attorney]. (22). Writ of Certiorari to remove Action of Replevin. Victoria, by the grace of God of the United Kingdom of Great Britain and Ireland Queen, Defender of the Faith : To the judge of the County Court of , holden at , greeting : We, being willing for certain causes to be certified of a plaint levied in our Court before you against C. D. at the suit of A. B. in an action of replevin, commuiid you that you send to our lligli Court of Justice on , the plaint aforesaid, 440 APPENDIX B. witli all tilings touching the same, as fully and entirely as It remains in our Court before you, by whatsoever names the parties may be caUed therein, together with this writ, that we may further cause to be done thereupon what of right we shall see fit to be done. Witness [^name of Lord Chancellor^ at , the day of , in the year of our Lord 1 8 . \^I?idorse77icnt.^ " By order of Mr. [Justice or Baron] , dated the day of ,18 ;" or "By rule of Court, dated the day of , If Add solicitor's name and address. (23). Brfnni of Count ij Court Judge to Certiorari [r). {^Indorsement on the writ.) The execution of this writ appears in the schedule hereunto annexed. The answer of , Esq., judge of the County Court within mentioned. \_A7inex a schedule written on parchment, as folloics :~\ I, , Esq., the judge of the County Court of , holden at , in the said county, do most humbly certify to our Sovereign lady the Queen, that at the date and suing forth of the writ of our said lady the Queen to me directed and to this schedule annexed (to wit) on \_teste of tcrit of cer- tiorari'] A. B., in the said writ named, entered in the office of the registrar of the said County Coiu't at aforesaid, a plaint in writing against C. D. in the said writ also named, for taking and unjustly detaining certain goods [and cattle] of the said A. B. : And that afterwards, on , a sum- mons on the said plaint was issued under the seal of the said Court, according to the form of the statutes in that behalf, whereby the said C. D. was summoned to appear at the said (r) See Chitty's Fomis. 12th fcL, p. 632. APPENDIX B. 4Cl Court to be holden at , in aforesaid, on , to answer the said A. B. to a claim, the particulars of which were thereunto annexed, and are as follows: — "In the County Court of [(Src, copy the particulars. ~\'''' And this is the tenor and record of the process of the said plaint, with all things touching the same, as it remains before me. (24). Notice of filing Certiorari and Demand of Statement of Claim (.s). In the High Court of Justice. Between A. B., plaintiff, and C. D., defendant. The defendant having sued out of this honourable Court a writ of certiorari directed to the judge of the County Court of , holden at , for removing the above cause out of the said County Court into this Court, returnable on the day of last past, I do hereby give you notice, that the defendant has filed the said writ, and the return thereto, with the proper officer of this Court, and has entered his appearance in the said action in this Court : And the plaintiff is hereby required to declare in the said action in four days, otherwise a judgment of non 2)ros. will be signed against him. Dated this day of ,18. Yours, &c., a. H., of Defendant's [solicitor or agent]. To Mr. E. F., the plaintiff's [solicitor or agent] {t). (s) See Cbitty's Fonns, 12th cd., p. G32. {t) The foi-ms in Appendix B. (17) tf) (24) are taken from Wood- fall's Landlord and Tenant, 12th od., by Lcly. 442 APPENDIX B. (25). Form of Statement of Claim in Replevin. Tho plaintiff has suffered damago by the defendant in a dwelling-house, 501, Pall Mall [or in a place called Whiteacre, in the parish of St. Peter's, in the county of Surrey], taking tho goods and chattels [or, the cattle] of tho plaintitf, tliat is to say, household furniture and effects [or, four bulloclcs, or as the case may be'], and unjustly detaining the same against sureties and pledges until, &:c. The plaintiff claims £ Place of trial (Signed) Delivered the day of 18. (26). Aroirr//for Rent in Replerin. The defendant avows the taking of tho said goods, and justly, as a distress for two quarters' rent in arrear from the of , 18 , to tho of , 18 , find due and owing from tho plaintiff as tenant to tho defendant of the said farm in tho statement of claim mentioned at the yearly rent of £ , paj^able quarterly. (27). Cognizance for Rent in Replevin. The defendant recognizes the taking of the said goods, and justly, as the bailiff of A. B., as a distress for two quarters' rent in arrear from the of , 1 8 , to the of , 18 , and due and owing to the said A. B. from the plaintiff as tenant to the said A. B., of the said house in the statement of claim mentioned at a yearly rent of £ , payable quarterly. APPENDIX B. '443 (28). Avoicnj by FreeJioIder for a Distress damage feasant. The defendant avows the taking of the said cattle, and justly, as a distress for damage done wrongfully and unlaw- fully by them to the said close in the statement of claim mentioned, which was at time of the supposed taking of the said cattle the freehold of the defendant. (29). Afoicry by Tenant for a Distress damage feasant. The defendant avows the taking of the said cattle, and justly, as a distress for damage done wrongfully and unlaw- fully by them to the said close in the statement of claim mentioned, which has been demised to the defendant for the term of years by A. B., who was seised in fee of the said close, and the defendant, by virtue of the said demise, entered into possession of the said close, and continued, and was at the time of the supposed taking of the said cattle, so in possession. 444 APPENDIX C.(a). (1). Cowphiint of the Overseers or Siirvej/ors against one Ratepayer. I Be it remembered, that on the day of , to wit. ) in the year of our Lord , the [churchwardens and overseers of the poor, or the siu'veyors of the highways] of the parish of , in the county of aforesaid, by C. D., one of the said [overseers or siu'veyors], complain to the undersigned [o»e] of her Majesty's justices of the peace, in and for the said \_coimtij'\, that A. B., of the said [pr/r/sA], being a person duly rated and assessed to [the relief of the poor, or the maintenance of the highways] of the said parish, in and by a rate {b) made on the day of , in the year , in the sum of , hath not paid the same, or any part thereof, but hath refused so to do : AVherefore the said [churchwardens and overseers, or surveyors] by C. D. aforesaid, pray that the said A. B. may be summoned to ai")pear before two of her Majesty's justices of the peace, to show cause why he hath not paid and refuses to pay the said sum^ C D, Made and exhibited before me, , ,^ at , in the county of , i on this day of , 18 . T E. r. ) [a) These fonns are taken from the schedule to the statute 12 & 13 Yict. c. 14. (6) Or, " in and by several rates made on , and on , in the several sums of , and of ." APPENDIX C. 445 (2). Complaint against several Eatepayers. Be it remembered that on tlie day of , in to wit. ) the year of our Lord , the [churchwardens and overseers of the poor, or the surveyors of the highways] of the parish of , in the \county'\ of aforesaid, by C. D. one of the said [overseers or sui"veyors], complain to the undersigned, [one'] of her Majesty's justices of the peace in and for the said \_coimty'], that the several persons whose names are mentioned and set out in the schedule hereunder ■written, being persons duly rated and assessed to [the rehef of the poor, or the maintenance of the highways] of the said parish, in and by the rates in the said schedule mentioned, in certain sums set down opposite to their respective names in the said schedule, have not respectively paid the said sums or any part thereof, but have respectively refused so to do : Wherefore the said [churchwardens and overseers, or sur- veyors], by C. D. aforesaid, pray that the said several persons may respectively be summoned to appear before two of her Majesty's justices of the peace, to show cause respectively why they have not paid and refuse to pay the said sums respectively. SCHEDTJLE. Names of Eatepayers. Kesidence. Under rate dated the , IS . AiTears due under rate dated the , 18 . Total sum due. A. B [here state it] £ s. d. 1 7 13 '6 14 '3 £ s. d. 1 7 IS 'e 14 3 £ s. d. 2 14 J. K L. M 13 18 6 N. p 1 8 6 CD. Made and exhibited before mo , at , in the county of , on this day of , 18 . E. F. 446 APPENDIX C. (3), Sunmioiis upon the Complaint . To A. V,., of Whereas complaint liatli this day been made before the undersigned, [one] of her l^[ajosty's justices of tlie peace in and for the \_county~\ of , by the [churchwardens and overseers of the poor, or surveyors of the highways] of the parish of , in the said [co?»i/y], that yon, being a person duly rated and assessed to [the relief of the poor, or the main- tenance of the highways] of the said parish, in and by a rate made on the day of , 1 8 , in the sum of £ , hath not paid the same or any part thereof, but hath refused so to do : These are therefore to command you, in her Majesty's name, to be and appear on , at o'clock in the forenoon, at , before such two or more justices of the peace for the said \_cotmty'] as may then be there, to show cause why you have not paid and refuse to pay the same, otherwise you shall be proceeded against by default as if you had appeared, and be dealt with according to law. Given under my hand and seal this day of , in the year of our Lord , at , in the [county'] afore- said. E. F. Take notice, that you have already incurred the under- mentioned costs, viz. : s. d. Clerk to the justices Overseer [or surveyor], for obtaining the sum- mons Constable, for serving ditto 1 Ditto, travelling expenses, at threepence per mile Total £ If the amount of these charges, together with the rate claimed, Lc paid to the overseer [or sun-eyor] before the day on which the summons is returnable, all further proceedings will he stopped. APPENDIX C. 44^ (4). Warrant of Distress against One Ratepayer. To the overseers of the poor [or To the surveyors of the highways] of the parish of , in the [cowiti/~\ of , and to the constable of , and to all other peace otticers in the said [county'], "Whereas on last past a complaint was made before E. r., one of her Majesty's justices of the peace in and for the [county'] of , by the [churchwardens and overseers of the poor or sui'veyors of the highways] of the parish of , in the said [county'], that A. B., being a person duly rated and assessed to the relief of the poor [or to the main- tenance of the highways] of the said parish, in and by a rate made on , in the sum of , had not paid the same or any part thereof, but had refused so to do ; and now at this day, to wit, on , at , the parties aforesaid appear before us, the undersigned, two of her Majesty's justices of the peace in and for the said county [or the said churchwardens and overseers, or surveyors, by C. D., one of the said overseers, or surveyors, appear before us, the under- signed, two of her Majesty's justices of the peace in and for the said county, but the said A. B., although duly called, doth not appear by himself, his counsel or attorney, and it is now satisfactorily proved to us on oath that the said A. B. has been duly served with the summons in this behalf, which required him to be and appear here at this day before such two or more justices of the peace as should now be here, to answer the said complaint, and to be further dealt with according to law] ; and now having heard the matter of the said complaint, and it being now duly proved to us upon oath [in the presence and hearing of the said A. B.] that an assess- ment for the [relief of the poor, or the maintenance of the highways] of the said parish of , and for other purposes chargeable thereon according to law, dated the , was duly made, allowed, and published, and that the said A. B. is therein and thereby assessed at the sum of aforesaid (c), and that the said sum hath been duly demanded of the (c) "And that a certain other assessment for the rohef," &.Q., to note (c), if t/icre be arrears. 448 APPENDIX C. said A. B., but that he hath not paid, and hath refused and still refuses to pay the same ; and the said A. B. now not showing to us any sufficient cause for not paying the same : These are therefore to command you, in her Majesty's name, forthwith to make distress of the goods and chattels of the said A. B., and if within the space of [^I'c] days after the making of such distress the said sum, and the sum of for the costs incurred by the said [churchwardens and over- seers, or surveyors] in obtaining this warrant, together with the reasonable charges of taking and keeping the said dis- tress, shall not be paid, that then you do sell the said goods and chattels so by you distrained, and out of the money arising by such sale you retain the said sums of and , rendering the overplus, on demand, to the said A. B., the reasonable charges of taking, keeping, and selling the said distress being first deducted ; and if no such distress can be found, that then you certify the same imto xis, to the end that such further proceedings may bo had herein as to the law doth aj)pertain. Given under our hands and seals this day of , in the year of oiu' Lord , at , in the \_county'] aforesaid. E. F. G. H. (5). Warrant of Dint reus against several Rate2ia'yers. To the overseers of the poor [_or the surveyors of the high- ways] of the parish of , in the \_connty~\ of , and to the constables of , and to all other peace officers in the said [^cou)ifij~\. AViiEREAS on last past a complaint was made before E. E., one of her Majesty's justices of the peace in and for the \_county'] of , by the [churchwardens and overseers of the poor, or the surveyors of the highways] of the parish of , in the said [county\ that the several persons whose names are mentioned and set forth in the schedule hereunder written, being persons duly rated and assessed to [the relief APPENDIX C. 449 of the poor, or maiutenance of the highways] of the said parish, in and by the rates in the schedule in that complaint and in this warrant underwritten, in certain sums set down opposite to their respective names in the said schedule, had not respectively paid the said sums or any part thereof, but had resj)ectively refused to do so ; and now at this day, to wit, on , at , the said [churchwardens and over- seers, or surveyors], by C. D., one of the said overseers, or surveyors, and A. B., J. K., and L. M., some of the said parties in the said schedule mentioned, appear before us, the undersigned, two of her Majesty's justices of the peace in and for the said [^county~\, but the said N. P., although duly called, doth not appear by himself, his counsel or attorney, and it is now satisfactorily proved to us on oath that the said N. P. has been duly served with the summons in this behalf, which required him to be and appear here at this day, before such two or more justices of the peace as should now be here, to answer the said complaint, and to be further dealt with according to law ; and now having heard the matter of the said complaint against the said several parties, and it being now duly proved to us upon oath, in the presence of the parties so appearing as aforesaid, that an assessment for \_the relief of the poor'\ of the said parish of , and for other purjDoses chargeable therein according to law, dated the , was duly made, allowed, and published, and that the said several persons whose names are mentioned and set out in the sche- dule hereunder written are therein and thereby assessed at the sums set down opposite to their respective names in the said schedule, and that the said several sums have been duly demanded of them respectively, but they have not, nor hath any of them, paid the said sums or any of them, or any part thereof respectively, but they have refused and still do refuse to pay the same respectively, and have not, nor hath any of them, showed to us sufficient cause for not paying the same : These are therefore to command you, in her Majesty's name, forthwith to make distress of the goods and chattels of the several persons whose names are mentioned and set out in the schedule hereunder written ; and if within the space of five days after the making of such distresses respectively the said several sums set opposite to their respective names at which O. O G 450 APPENDIX C. thoy -^ore so rated and assessed as aforesaid, and the said several sums for costs incurred by the said [eliurchwardens and overseers, or surveyors] also set 02:)posite to their respec- tive names, together with the reasonable charges of talcing and heejaing the said distress in each case, shall not be paid, that then you do sell the goods and chattels of the party so making default so by you distrained, and out of the money arising by such sales respectively jo\x retain the sums so set opposite to the name of each party whose goods you shall have so sold, rendering to him the overplus, the reasonable charges of taking, keeping, and selling the said distress being first deducted ; and if in any of the cases mentioned in tlie schedule hereunder written no such distress can be found, that then you certify the same unto us, to the end that such fiu'ther proceedings may be had herein as to the law doth a^^pertain. Schedule. Names of Eatepayers. Eesidence. Under rate dated ,18 . Arrears due under rate dated , 18 . Costs. Total. A. B J. K L. M. . . N. P. . . [here state it] £ s. d. 1 7 13 'l4 ' 3 £ «. d. 1 7 o"l8 "Vj 14 3 £ s. d. 6 2 6 3 5 £ s. d. 3 15 6 1 1 6 1 13 6 Given under our hands and seals, this in the year of our Lord , at aforesaid. day of , , in the \^cotnifi/^ E. F. G. H. APPENDIX 0. 451 (6), Warrant of Conimitmenl in default of D' stress. To the overseers of the poor \_or the surveyors of the high- ■\vays] of the parish of , in the [^comitij~\ of , and to the constable of , and to all other peace officers in the said [younty^, and to the keeper of the \Jiouse of correctioii] at , in the said \_county']. Whereas on last past a complaint was made before E. P., esquire, one of her Majesty's justices of the peace in and for the said \_cou7ity~\ of , by the [churchwardens and overseers of the poor, or surveyors of the highway's] of the parish of , in the said [^comity'], that A. B., being a person duly rated to the [relief of the poor, or maintenance of the highways] of the said parish, in and by a rate made on , in the sum of , had not paid the same or any part thereof, but had refused so to do ; and afterwards on , at , the parties aforesaid appeared before E. F. and Gr. H., esquires, two of her Majesty's justices of the peace in and for the said county [o;- the said churchwardens and overseers, ur survej'ors, by C. D., one of the said over- seers, 07- surveyors, appeared before E. E. and G. H., esquires, two of her Majesty's justices of the peace in and for the said county, but the said A. B., although duly called, did not appear by himself, his counsel or attorney, and it was then satisfactorily proved to the said justices that the said A. B. had been duly served with the summons in that behalf, which required him to be and appear there at that day, before such two or more justices of the peace as should then be there, to answer the said complaint, and to be further dealt with according to law] ; and then having heard the matter of the said complaint, and it being then dul}^ proved to the said justices upon oath [in the presence and hearing of the said A. B.] that an assessment for the [relief of the poor, or the maintenance of the highways] of the said parish of , dated the , was duly made, allowed, and published, and that the said A. B. was therein and thereby assessed at the sum of aforesaid, and that the said sum had been duly demanded of the said A. B., but that he had not paid, and had refused and still refused to pay the same, and the said A. B. then not showing to the said E. E. and G. H. any G G 2 452 APPENDIX C. sufficient cause for not paying the same, the said justices thereupon then issued a warrant to , commanding them to levy the said sum of , and the sum of for the costs incurred in obtaining that warrant, by distress and sale of the goods and chattels of the said A. B. : And whereas it now appears to me, the undersigned, one of her Majesty's justices of the peace in and for the said \^cotinfi/'\, as well by the return of the said to the said warrant of distress as otherwise, that the said hath made diligent search for the goods and chattels of the said A. B., but that no sufficient distress whereon to levy the said sums above mentioned could be found : These are therefore to command you, the said [churchwardens and overseers, or surveyors] and con- stable and peace officers, or some or one of you, to take the said A. B., and him safely to convey to the \_hoi(se ofcorrectioii] at aforesaid, and there deliver him to the said keeper, together with this precept ; and I hereby command you, the said keeper of the said \_house of correcfio/i^, to receive the said A. B. into your custody in the said [^hotise of correction], there to imprison him for the space of , unless the said sums of and , together with the sum of for the costs attending the said distress, and the further sum of , being the costs and charges of this commitment, and of taking and conveying the said A. B. to prison, making in the whole the sum of , shall be sooner j)aid unto you, the said keeper ; and for your so doing this shall be your sufficient warrant. Given under m}* hand and seal this day of , in the year of our Lord , at , in the [county'] afore- said. J. S. (l.s.) 453 APPENDIX D.(«). (1). Warraiif of Distress upon a Conviction for a Penalty. To the constable of , and to all other peace officers in the said \_co^lnty'\ of "Whereas A. B., late of , [laliourer~\^ Tras on this da}', \^or on last past] duly convicted before the undersigned, [o??e] of her Majesty's justices of the peace in and for the said county of , for that \_stating the offence as in the conviction'] ; and it was thereby adjudged that the said A. B. should for such his offence forfeit and pay [&c., as in the conviction] ; and should also pay to the said C. D. the sum of for his costs in that behalf ; and it was thereby ordered that if the said several sums should not be paid \^forihwith~\, the same should be levied by distress and sale of the goods and chattels of the said A. B. ; and it was thereby also adjudged that in default of sufficient distress the said A. B. should be imprisoned in the [Ao«se oj" correction] at , in the said county, \_and there kept to hard labour] for the sj)ace of , unless the said several sums, and all costs and charges of the said distress, and of the commitment and conveying of the said A. B. to the said \_hoiise of correction]^ should be sooner paid : And whereas the said A. B., being so convicted as aforesaid, and being [?io?o] required to pay the said sums of and , hath not paid the same or any part thereof, but therein hath made default : These are therefore to command you, in her Majesty's name, forthwith to make distress of the goods and chattels of the said A. B., and if within the space of days next after tlie making («) The forms in this Appendix are taken from the schedule to the statute 11 & 12 Vict. c. 43. 45'i APPENUIX 1). of such disti'pss tlio said sums, together with the reasonable charges of taking and keeping the distress, shall not be paid, that then you do sell the said goods and chattels so by you distrained, and do pay the money arising by such sale unto , the clerk of the justices of the peace for the division of , in the said \_counit/^, that he may pay and apply the same as b}- law is directed, and may render the overplus, if any, on demand, to the said A. B. ; and if no such distress can be found, then that you certify the same unto me, to the end that siich further proceedings may be had thereon as to the law doth appertain. Given under my hand and seal, this day of , in. the year of our Lord , at , in the [coimty'] afore- said. J. S. (l.s.) (2). Warrant of Didrcss upon an Order for tJte Paynient of Money. To the constable of , and to all other peace officers in the said \_coxintf\ of AVhereas on last past, a complaint was made before the undersigned, \one\ of her Majesty's justices of the peace in and for the said county of , for that [&c., as in the order~\ ; and afterwards, to wit, on , at , the said parties appeared before me [_or as in the order'], and there- upon, having considered the matter of the said complaint, I adjudged the said A. B. to [^pai/ to the said C. D. the sum of on or before the then 7iext], and also to pay to the said C. D. the sum of for his costs in that behalf ; and I thereby ordered that if the said several sums should not be paid on or before the said then next, the same should be levied by distress and sale of the goods and chattels of the said A. B. ; and it was adjudged that in default of suflB.cient distress in that behalf, the said A. B. should bo imprisoned in the \_house of correction] at , in the said county, \_and there liept to hard labour] for the space of , unless the said several sums, and all co.'^ts and charges of the APPENDIX D. distress, [and of the co)nmiiment cmcl conveying of the said A. B. to the said house of correction,^ should be sooner paid. And whereas the time in and by the said order appointed for the payment of the said several sums of and hath elapsed, but the said C. D. hath not paid the same or any part thereof, but therein hath made default. These are therefore to command you, in her Majesty's name, forthwith to make distress of the goods and chattels of the said A. B. ; and if within the space of days after the making of such distress the said last-mentioned sums, together with the reasonable charges of taking and keeping the said distress, shall not be paid, that then you do sell the said goods and chattels so by you distrained, and do pay the money arising from such sale unto , the clerk of the justices of the peace for the division of , in the said [coww/y], that he may pay and apply the same as by law directed, and may render the overplus, if any, on demand, to the said A. B. ; and if no such distress can be found, then that you certify the same unto me, to the end that such proceedings may be had therein as to the law doth appertain. Given under my hand and seal, this day of , in the year of our Lord , at , in the [connti/'\ aforesaid. J. S. (l.s.) (3). Endorsement in Baching a Warrant of Distress. ") Wheeeas proof upon oath hath this day been made to wit. ) before me, one of her Majesty's justices of the peace in and for the said county of , that the name of J. S. to the within warrant subscribed is of the handwriting of the justice of the peace within-mentioned : I do therefore authorize W. T., who bringoth to me this warrant, and all other persons to whom this warrant was originally directed, or by whom the same may be lawfully executed, and also all constables and other peace officers of the said [counfy~] of , to execute the same within the said county of Given under my hand, this day of , 188 . J. B. 455 456 APPENDIX D. (4), Constable^ s Bet urn io a IFarrant of Distress, I, "W. T., constable of , in tlie \_counttj] of , do hereby certif}' to J. S., Esquire, one of her Majesty's justices of tlie peace for the said county, that by virtue of this warrant I have made diligent search for the goods and chattels of the within-mentioned A. B., and that I can find no sufficient goods or chattels of the said A. B. whereon to levy the sums witliin- mentioned. Witness my hand, this day of , 188 . AV. T. (5). Warrant of Commitment for want of Distress. To the constable of , and to the keeper of the [_house of correction'] at , in the said \_county~\ of AVhereas [&c., as in either of the foregoing distress icar- rants, 1 aiirJ 2] : And whereas afterwards, on the day of in the year aforesaid, I, the said justice, issued a war- rant to the constable of , commanding him to levy the said sums of and by distress and sale of the goods and chattels of the said A. B. : And whereas it appears to me, as well by the return of the said constable to the said warrant of distress as otherwise, that the said constable hath made diligent search for the goods and chattels of the said A. B., but that no sufficient distress whereon to levy the sums above mentioned could be found : These are therefore to command you, the said constable of , to take the said A. B., and him safely to convey to the [house of correctioii\ at afore- said, and there deliver him to the said keeper, together with this precept ; and I do hereby command you, the said keeper of the said \house of correction^, to receive the said A. B. into your custody in the said \Jiouse of correction~\, there to imprison him \jind keep him to hard laI}our'\ for the space of , unless the said several sums, and all the costs and charges of the said distress, [and of the commitment and conveying of the said A. B. to the said house of correction,^ amounting to the further sum of , shall be sooner paid unto you, the said APPENDIX D. 457 keeper ; and for your so doing this shall be yoiu- sufficient warrant. Given under my hand and seal, this day of , in the year of our Lord , at , in the \_county'] aforesaid. J. S. (l.s.) (6) . Warrant of Commitment upon a Conviction for a Penalty in the first instance. To the constable of , and to the keeper of the [house of correction~\ at , in the said [_county~\ of Whereas A. B., late of , [lahourer], was on this day didy convicted before the undersigned, [one] of her Majesty's justices of the peace in and for the said [cotmty'], for that [stating the offence as in the conviction] ; and it was thereby adjudged that the said A. B. for his said offence should forfeit and pay the sum of [&c., as in the conviction], and should pay to the said C. D. the sum of for his costs in that behalf; and it was thereby further adjudged that if the said several sums should not be paid [forth ivith], the said A. B. should be imprisoned in the [ho2ise of correctioti] at , in the said [county], [and there kept to hard lahour] for the space of , unless the said several sums [and the costs and charges of conveying the said A. B. to the said house of correction] should be sooner paid : And whereas the time in and by the said conviction appointed for the payment of the said several sums hath elapsed, but the said A. B. hath not paid the same or any j)art thereof, but therein hath made default : These are therefore to command you, the said constable of , to take the said A. B., and him safely to convey to the [house of correctioti] at aforesaid, and there to deliver hun to the keeper thereof, together with this precept ; and I do hereby command you, the said keeper of the said [house of correctio7{], to receive the said A. B. into your custody in the said [house of correction], there to imprison him [and keep him to hard laboto'] for the space of unless the said several sums [and the costs and charges of 458 APPENDIX 1). conrei/hif/ him to the said [house of correction), amonntin(j to the further sum of ,] shall be sooner paid; and for your so doing this shall be your sufficient warrant. Given under my hand and seal, this day of , in the year of oiu- Lord , at , in the \_county~\ afore- said. J. S. (l.s.) (7). Warrant of Commit )nent on an Order in the first instance. To the constable of , and to the keeper of the [^house of correct ioii] at , in the said \_county'\ of Whekeas on last past complaint was made before the undersigned \_one~\ of her INEajesty's justices of the peace in and for the said county of , for that [&c., as in the order'] ; and afterwards, to wit, on , at , the parties appeared before [?ne], the said justice [or as it may be m the order], and thereupon, having considered the matter of the said complaint, I adjudged the said A. B. to pay to the said C. D. the sum of on or before the day of then next, and also to pay to the said C. D. the sum of for his costs in that behalf; and I also thereby adjudged that if the said several sums should not be paid on or before the day of than next, the said A. B. should be imprisoned in the [^house of correction] at , in the said county, \_and there kept to hard labotir] for the space of , unless the said several sums [««f/ the costs and charges of conveying the said A. B. to the said house of correction] should be sooner paid. And whereas the time in and by the said order appointed for the payment of the said several sums of money hath elapsed ; but the said A. B. hath not paid the same or any part thereof, but therein hath made defaidt : Those are therefore to com- mand you, the said constable of , to take the said A. B. and him safely convey to the said \Jiouse of correctioji] at aforesaid, and there to deliver him to the keeper thereof, together with this precept ; and I do hereby command you, the said keeper of the said \Jiouse of correction], to receive the said A. B. into yoiir custody in the said [house of correction], APPENDIX D. 459 there to imprison him [and keep him to hard labour'] for the space of , unless the said several sums \j:md the costs and charges of conveying him to the said house of correction, amounting to the further sutn of ,] shall be sooner paid unto you, the said keeper ; and for your so doing this shall be your sufficient warrant. Given under my hand and seal this day of , in the year of our Lord , at , in the [countg] aforesaid. J. S. (l.s.) (8). Warrant of Commitment on a Conviction where the Punishment is hy Imprisonment. To the constable of , and to the keeper of the \liouse of correction'] at , in the said [county] of Whekeas a. B., late of , [labourer], was this day duly convicted, before the undersigned, [one] of her Majesty's justices of the peace in and for the said [coimty] of , for that [stating the offence as in the conviction] ; and it was thereby adjudged that the said A. B. for his said offence should be imprisoned in the house of correction at , in the said county [and there kept to hard labour] for the space of : These are therefore to command you, the said con- stable of , to take the said A. B., and him safel}^ convey to the house of correction at aforesaid, and there to deliver him to the keeper thereof, together with this precept ; and I do hereby command you, the said keeper of the said house of correction, to receive the said A. B. into your custody in the said house of correction, there to imprison him [a)id keep him to hard labour] for the space of ; and for your so doing this shall bo your sufficient warrant. Given under my hand and seal this day of , in the year of our Lord , at , in the [county] afore- said. J. 8. (l.s.) 460 APPENDIX D. (9). Warrant of CommUment on an Order ^ where the dis- obeying of it is 2^^nishable hy Imprisonment. To the constable of , and to the keeper of the \house of corrcctioii\ at , in the said \count\f\ of "Whereas on last past complaint was made before the undersigned \one\ of her Majesty's justices of the peace in and for the said county of , for that [&c., as in the order~\ ; and afterwards, to wit, on , at , the said parties appeared before me \_or as it may be in the order'^, and there- upon, having considered the matter of the said complaint, I adjudged the said A. B. to [&c., as in the order'] ; and that if upon a copy of the minute of that order being duly served upon the said A. B., either personally, or by leaving the same for him at his last or most usual place of abode, he should neglect or refuse to obey the same, it was adjudged that in such case the said A. B. for such his disobedience should be imprisoned in the \_house of correction] at , in the said county \a7id there kept to hard labour] for the space of [imless the said order should be sooner obeyed] : And whereas it is now proved to me that after the making of the said order a copy of the minute thereof was duly served upon the said A. B., but he then refused [or neglected] to obey the same and hath not as yet obeyed the said order : These are there- fore to command you, the said constable of , to take the said A. B., and him safely to convey to the \_house of correc- tion] at aforesaid, and there to deliver him to the keeper thereof, together with this precept ; and I do hereby command you, the said keeper of the said [liouse of correction], to receive the said A. B. into your custody in the said \Jiouse of correction], there to imprison him \_and heep him to hard labour] for the space of ; and for so doing this shall be your sufficient warrant. Given under my hand and seal, this day of , in the year of our Lord , at , in the \_county] afore- said. J. S. (l.s.) APPENDIX D. (10). Warrant of Distress for Costs iqyon a Conviction, where the O^ence is punishable hy Imprisonment. To the constable of , and to all other peace officers in the said \_coimty'\ of Whereas A. B., of [lahourer\ was, on last past, duly convicted before the undersigned, \_one\ of her Majesty's justices of the peace in and for the said county, for that \_stating the offence as in the conviction^ ; and it was thereby adjudged that the said A. B., for his said offence, should be imprisoned in the house of correction at , in the said county [«/«/ there kept to hard labour~\ for the space of ; and it was also thereby adjudged that the said A. B. should pay to the said C. D. the sum of £ for his costs in that behalf ; and it was thereby ordered that if the sum of £ for costs should not be paid \_forthwith^, the same shoidd be levied by distress and sale of the goods and chattels of the said A. B. ; [and it was adjudged that in default of sufficient distress in that behalf the said A. B. should be imprisoned in the said house of correction \_and there hept to hard lahour^ for the space of , to commence at and from the termina- tion of his imprisonment aforesaid, unless the said sum for costs, and all costs and charges of the said distress, and of the commitment and conveying of the said A. B. to the said house of correction should be sooner paid:] And whereas the said A. B., being so convicted as aforesaid, and being required to pay the said sum of £ for costs, hath not paid the same or any part thereof, but therein hath made default : These are therefore to command you, in her Majesty's name, forth- with to make distress of the goods and chattels of the said A. B., and if within the space of days next after the making of such distress the said last-mentioned sum, together with the reasonable charges of taking and keeping the said distress, shall not bo paid, that then you do sell the said goods and chattels so by you distrained, and do jiay the money arising from such sale to , the clerk of the jus- tices of the peace for the division of , in the said [county~\, that he may pay the same as by law directed, and may render tlio surplus (if any), on demand, to the said A. B. ; 461 462 ArPENDIX D. and if no such dlstvoss can he found, then that you certify' the same unto nie, to the end tliat such proceedings may be had therein as to the law doth appertain. Given under my hand and seal this day of , in the year of our Lord , at , in the [co»/j/y] afore- said. J. S. (l.s.) (11). Warrant of Di'it>i upon ait Order, iclicre the disohoying of the Order k punishable ni'th Iin- prisonnicnt. To the constahle of , and to all other peace officers in the said \_coimty'] of Whereas on last past complaint was made before the undersigned, [one] of her Majesty's justices of the peace in and for the said count}' of , for that [&c., as in the order'] ; and afterwards, to wit, on , at , the said parties appeared before me, as such justice as aforesaid \_or as it may be in the order], and thereupon, having considered the matter of the said complaint, I adjudged the said A. B. to [&c., as ifi the orde?'] ; and that if upon a copy of the minute of that order being served upon the said A. B., either personally, or by leaving the same for him at his last or most usual abode, he should neglect or refuse to obey the same, I ad- judged that in such case the said A. B., for such his disobe- dience, should be imprisoned in the house of correction at , in the said county \_and there kept to hard labour] for the space of [unless the said order should be sooner obeyed] ; and I thereby also adjudged the said A. B. to pay to the said C. D. the sum of £ for his costs in that behalf ; and I ordered that if the said sum for costs should not be paid [fortkicith], the same should be levied on the goods and chattels of the said A. B. ; [and in default of sufficient distress in that behalf I thereby adjudged that the said A. B. should be imprisoned in the said house of correction [and there kept to hard labour] for the space of to commence at and from the termina- tion of his imprisonment aforesaid, unless the said sum for costs, and all costs and charges of the said distress, and of the APPENDIX D. 463 commitment and eonvej'ing' of the said A. B. to the said house of correction, should be sooner paid] : And whereas after the mating of the said order a copy of the minute thereof was duly served upon the said A. B., but the said A. B. did not then pay, nor hath he paid, the said sum of for costs or any part thereof, but therein hath made default : These are therefore to command you, in her Majesty's name, forthwith to make distress of the goods and chattels of the said A. B. : and if within the space of days next after the making of such distress the said last-mentioned sum, together with the reasonable charges of taking and keeping the said distress, shall not be paid, that then you do sell the said goods and chattels so by you distrained, and do pay the money arising from such sale to , the clerk of the justices of the peace for the division of , in the said \_counti/~\, that he may pay the same as by law directed, and may render the overplus, if any, on demand, to the said A. B. ; and if no such distress can be found, then that you certify the same xmto me, to the end that such proceedings may be had therein as to the law doth appertain. Given under my hand and seal, this day of , in the year of our Lord , at , in the \_county~\ afore- said. J. S. (l.s.) (12). Warrant of Commitment for want of Distress in cither of the last ttco Cases. To the constable of , and to the keeper of the [^Itouse of correction] at , in the said [county] of Whereas [«S:c., as in the last tioo forms respectively, and then thus] : And whereas afterwards, on the day of in the year aforesaid, I, the said J. S., issued a warrant to the constable of , commanding him to levy the said sum of for costs by distress and sale of the goods and chattels of the said A. B. : And whereas it apj)ears to me, as well by the return of the said constable to the said warrant of distress as otherwise, that the said constable hath made diligent search for the goods and chattels of the said A. B., Init that no 46 i APPENDIX D. sufficient distress ■whereon to levy the sum above mentioned could be found : These are therefore to command you, the said constable of , to take the said A. B., and him safely to convey to the \_house of correction'] at aforesaid, and there deliver him to the keeper thereof, together with this precept ; And I do hereby command you, the said keeper of the said Jwiise of correction, to receive the said A. B. into your custody in the said house of correction, there to imprison him \_and kee}^ him to hard labour] for the space of , unless the said sum, and all costs and charges of the said distress, \_and of the com- mitment and conveying of the said A. B. to the said house of correction,] amounting to the further sum of , shall be sooner paid unto you, the said keeper ; and for your so doing this shall be your sufficient warrant. Given under my hand and seal, this day of , in the year of our Lord , at , in the '[coantt/] aforesaid. J. S. (l.s.) (13). Warrcod of Distress for Costs upon an Order for Dis- missal of an Information or Co)npIainf. To the constable of , and to all other peace officers in the said [coimty] of Whereas on last past, information was laid [_or complaint was made] before the undersigned [one] of her Majesty's justices of the peace in and for the said county, for that [&c., as in the order of dismissal] ; and afterwards, to wit, on , at , both parties appearing before me in order that I should hear and determine the same, and the several proofs adduced to me in that behalf being by me duly heard and considered, and it manifestly appearing to me that the said information [or complaint] was not i)roved, I therefore dismissed the same, and adjudged that the said C. D. should pay to the said A. B. the sum of , for his costs incurred by him in his defence in that behalf ; and I ordered that if the said sum for costs should not be paid [forthivith], the same should be levied of the goods and chattels of the said C. D. ; [and I adjudged that in default of AprKXDix J). 465 sufEcient distress in that belialf the said C. D. should be im- prisoned in the house of correction at , in the said county, and there kept to hard labour for the space of , unless the said sum for costs, and all costs and charges of the said distress, and of the commitment and conveying of the said C. D. to the said house of correction should he sooner paid:] (*) And whereas the said C. D., being now recj^uired to pay unto the said A. B. the said sum for costs, hath not paid the same or any part thereof, but therein hath made default : These are therefore to command you, in her Majesty's name, forth- with to make distress of the goods and chattels of the said CD.; and if within the space of days next after the making of such distress the said last-mentioned sum, together with the reasonable charges of taking and keeping the said distress, shall not be paid, that then you do sell the said goods and chattels so by you distrained, and do pay the money arising from such sale to , the clerk of the justices of the peace for the division of , in the said [coMw/y], that he may pay and apply the same as by law dii-ected, and may render the overplus (if any), on demand, to the said C. D. ; and if no such distress can be found, then that you certify the same unto me, to the end that such pro- ceedings may be had therein as to the law doth appertain. Given under my hand and seal, this day of , in the year of oiu' Lord , at , in the \^county~\ aforesaid. J. S. (l.s.) (14). Warrant of Commif)iient for icant of Disfre-ss in the last Case. To tlie constable of , and to the keeper of the \_house of correction'] at , in the said [^county] of WiiEKEAS [&c., as in tlic last form to the asterisk (*'), and then thus] : And whereas afterwards, on the day of , in the year aforesaid, I, the said justice, issued a warrant to the constable of , commanding him to levy tlio said sum of £ for costs by distress and sale of the goods and chattels of the said C. D. : And whereas it appears to mo, as well by o. J I II 466 APPENDIX D. the return of the said constable to the said warrant of distress as otherwise, that the said constable hath made diligent search for the goods and chattels of the said C. D., but that no suffi- cient distress whereon to levy the sum above mentioned could be found : These are therefore to command you, the said con- stable of , to take the said C. D., and him safely convey to the house of correction at , aforesaid, and there deliver him to the said keeper thereof, together with this precept : and I do hereby command you, the said keeper of the said house of correction., to receive the said C D. into your cus- tody in the said house of correction, there to imprison him [^and keep him to hard labour^ for the space of , unless the said sum, and all costs and charges of the said distress [«??// of the commitment and conveying of the said C. D. to the said house of correction^, amounting to the further sum of £ , shall be sooner paid unto you, the said keeper ; and for your so doing this shall be youi" sufficient warrant. Given under my hand and seal, this day of , in the year of our Lord , at , in the [_coimtt/'] afore- said. J. S. (l.s.) (15). Certificate of Clerk of the Peace that the Costs of an Appeal are not paid. Office of the clerk of the peace for the [_cou7iti/'\ of [Title of the Ap^^eal.) I hereby certify, that at a Court of General Quarter Sessions of the Peace, liolden at , in and for the said '\_county'], on last past, an appeal by A. B. against a conviction \_or order] of J. S., Esquire, one of her Majesty's justices of the peace for the said [^county'], came on to be tried, and was then heard and determined, and the said Court of General Quarter Sessions thereupon ordered that the said conviction \_or order] should be confirmed [_or quashed], and that the \_appellant^ should pay to the said \_rcspondent~\ the sum of for his costs incurred by him in the said appeal, and which sum was thereby ordered to be paid to the clerk of the APrEXDIX D. '161 peace of tlie said county on or before the day of instant, to be by him handed over to the said \_respondeni\ ; and I further certify that the said sum for costs has not, nor has any part thereof, been paid in oliedience to the said order. Dated the day of , 18 . G. H., \_Deputy~\ Clerk of the Peace. (16). Warr((}tf of Distress for Costs of an Appeal against a Conviction or Order. To the constable of , and to all other peace officers in the said [_coiinti/'\ of Whereas [&c., as in the learrants of distress, 1 and 2, ante, to the end of the statement of the conviction or order, and then thus^ : And whereas the said A. B. appealed to the Court of General Quarter Sessions of the Peace for the said county against the said conviction [or order], in which appeal the said A. B. was the appellant, and the said C. D. [or J. S., Esquire, the justice of the peace who made the said conviction or order,] was the respondent ; and which said appeal came on to be tried, and was heard and determined, at the last general quarter sessions of the peace for the said county, holden at , on ; and the said Court of General Quarter Sessions thereupon ordered that the said conviction [or order] should be con- firmed [or cj^uashed], and that the said [appetlant'\ should pay to the said [respondent~\ the sum of £ for his costs in- cui'red by him in the said appeal, which said sum was to be paid to the clerk of the peace of the said [count y'\ on or before the day of ,18 , to be by him handed over to the said [C. D.] : And whereas the [deputy\ clerk of the peace of the said [countij\ hath, on the day of , instant, duly certified that the said sum for costs had not tlieu been paid : (*) These are therefore to command you, in her Majesty's name, forthwith to make distress of the goods and chattels of the said A. B. ; and if ^\ itliiii the space of days next after the makiug of sueli distress the said last- H II 2 468 APPENDIX D. meutioned sum, togetlier witli tlie reasonable charges of taking and keeping the said distress, shall not be paid, that then you do sell the said goods and chattels so by you dis- trained, and do pay the money arising from such sale to , the clerk of the justices of the peace for the division of , in the said \_couniy'], that he may pay and apply the same as by law directed ; and if no such distress can be found, then that you certify the same unto me, to the end that such pro- ceedings may be had therein as to the law doth appertain. Given under my hand and seal, this day of , in the year of our Lord , at , in the [county'] afore- said, J. N. (l.s.) (17). Warrant of Comnutmentfor want of Distress in the last Case. To the constable of , and to the keeper of the \Jiouse of correction~\ at , in the said [coiC7ity~\ of Whereas [»S:c., as in the last form to the asterisk (^'), and then thus] : And whereas afterwards, on the day of , in the year aforesaid, I, the undersigned, issued a warrant to the constable of , commanding him to levy the said sum of , for costs by distress and sale of the goods and chattels of the said A. B. : And whereas it appears to me, as well by the return of the said constable to the said warrant of distress as otherwise, that the said constable hath made diligent search for the goods and chattels of the said A. B., but that no sufficient distress whereon to levy the sum above mentioned could be found : These are therefore to command you, the said constable of , to take the said A. B., and him safely to convey to the [house of correction] at aforesaid, and there deliver him to the said keeper thereof, together with this precept ; and I do hereby command you, the said keeper of the said [house of correction], to receive the said A. B. into your custody in tlie said [house APPENDIX D. of correction~\, there to imprison liini \j:ind keep him to hard labour^ for the space of , unless the said sum, and all costs and charges of the said distress, \^a7id of the commitment cmd conveying of the said A. B. to the said house of correction^ amounting to the further sum of £ , shall be sooner j^aid unto you, the said keeper ; and for your so doing this shall be your sufficient warrant. Given under my hand and seal, this day of , in the year of our Lord , at , in the \yountif\ aforesaid. J. N. (l.s) 469 (18). Collector' H Warrant [a). To and , of , in the district of , in the county of Wheeeas you, the above-named and , vrere on the day of last duly nominated and appointed by the Commissioners of the Income Tax and Inhabited House Duties, acting in and for the district aforesaid, in the county aforesaid, to be collectors of the duties on profits arising from property, professions, trades and offices, and of the duties on inhabited houses [oj* as the case may be\ for the {b) of in the said district, for the year ending 5th day of April, 18 . And whereas, by virtue and in pursuance of the powers and authorities of the several Acts of Parliament relating to the said duties, we, the said Commissioners, have signed and allowed the [fore(joing~\ duplicate of the assessments of the said duties, chargeable under the respective Schedules (A.) and (B.) [or (D.) and (E ), as the case may require] of the Act 16 & ] 7 Yict. c. 34, and of the duties on inhabited houses, under the Act 14 & 15 Yict. c. 36, and charged upon the several (a) This warrant may bo printed on the duplicate, or be a scj^aratc docuinfnt. (/>) Whci'c parishes or places have been united for tax pui'poses all the names should be inserted and described as the "united parishes or places of 470 APPENDIX 1). persons mentioned in the foregoing' duplicate within the aforesaid, for the year ending the 5th day of April, 18 Now WP, the said Commissioners, do hcrehy enjoin and re- quire you, the above-named collectors, or either of you, to make demand of the several sums contained in the foregoing duplicate from the parties charged therewith, or at the places of their last abode, or on the premises charged with tlio assessment, as the case may require, within the time and in the manner appointed and directed by the said Acts ; and upon payment thereof to give acquittances under your hands (without taking anything for such acquittances) unto the several persons who shall pay the same ; and if any person or persons shall refuse to pay the sum or sums charged upon him, her, or them, upon demand duly made by you, or either of you, then we do hereby enjoin and strictly require you, or either of you, for non-paj-ment thereof, to distrain for the same according to the directions of the said Acts, by virtue of this our warrant, without further authority. Given under our hands and seals at , within the said district, this day of , in the year of our Lord, 18 . Commissioners of the Income Tax and Inhabited House Duties. (19). Collector's Warrant, irhivli matj he insucd duri)Kj the jx-riod the Hcltcduto^ of Defaulters renui'ni icitU the Couniii.s.sioiiers. To and collectors of the duties hereinafter men- tioned for the of , in the district of , in the county of Wheeeas the Commissioners of the Income Tax acting in and for the before-mentioned district, have made and executed the several assessments of the duties on profits arising from property, professions, trades, and ofFicos, iov the year ending APPENDIX 1). 471 the Sth. day of April, 1 8 , upon the several persons chargeable with the said duties within the aforesaid, and duplicates of the same have been delivered to you, the above-named col- lectors of the said duties : And whereas the said commissioners have received, in jDursuance of the Acts of Parliament in that behalf, a certain schedule in writing, signed and duly sworn to b}' you the said collectors, whereby the several persons therein named are returned as defaulters, for that the several sums assessed upon them and therein contained have been de- manded from and are due and wholly unpaid for the respec- tive persons charged therewith : Now we, the undersigned Commissioners of the Income Tax acting in and for the district aforesaid, do hereby enjoin and require you, or either of you, the above-named collectors, to make demand of the several sums mentioned in the said schedule, and contained in the said assessments, from the parties charged therewith, or at the places of their last abode, or on the premises charged with the assessment as the case may require, and upon payment thereof to give acquittances under your hands unto the several persons who shall pay the same ; and if any person or persons shall refuse to pay the sum and sums charged upon him, her, or them upon demand duly made by you, or either of you, then we hereby enjoin and strictly require you, or either of you, for non-payment thereof, to distrain for the same, according to the directions of the said Acts by virtue of this our warrant, and that you return to us the amount and particulars of the several sums received by you on the day of now next, at the usual place of meeting, namely, at in the said district. Given under our hands and seals at , in the said district, the day of in the year of our Lord, 18 . I Commissioners of the J Income Tax. 472 APPENDIX D. (20). Certificate of Removal. To and collectors of the duties on profits arising from property, professions, trades, and offices, and of inhabited house duties, for the of , in the district of , in the county of "We, the undersigned Commissioners of the Income Tax and Inhabited House Duties acting within and for the district of aforesaid, do hereby authorize and require you, the above-named collectors, or either of you, to' make due demand of and from , the person named in the foregoing certifi- cate, of payment of the sum of , in respect of the duties charged and assessed upon him, as in the said certificate is mentioned, and if he shall refuse or neglect to pay the same upon such demand being made, then we hereby empower and require you, or either of you, to distrain for the same, accord- ing to the directions of the statute in that behalf, by virtue of this our warrant, without further authority: And upon receipt of the said sum of money, or any part thereof, we hereby direct and enjoin you to pay over the same to the collector of Inland Revenue for the county of , to the account of , the collectors of the said duties for the , of , for which this shall be j'our sufficient authority. Given under our hands and seals at , in the said district of , this day of , in the year of our Lord 18 . I Commissioners of the Income Tax and ) Inhabited House Duties. N.B. — As a collector of the parish or place where the duties herein certified are assessed and due has not collected the same, and as, therefore, he is not entitled to any poundage thereon, the collector of any other parish or place who shall collect the said duties, will, on paj'ment thereof to the receiv- ing officer, be allowed the poundage to which the first men- tioned collector would have been entitled if the duties had been collected by him. APPENDIX D. 473 (21). Warrant to Brcal; Open. To and , collectors of tlie duties hereinafter men- tioned for the of , in the district of , in the county of AYheeeas in and by the assessments of the duties of income tax and the duties on inhabited houses for the afore- said for the j-ear ending the 5th day of April, 18 , of hath been duly charged to the said duties in the sum of And whereas it appears by the oath that , collector of the said duties appointed for the said taken before us, whose hands and seals are hereimto subscribed and set, being tsvo of the Commissioners of the Income Tax and Inhabited House Duties acting in and for the district afore- said, that the said sum of hath been duly demanded of the said , and that he hath refused and neglected to pay the same, and that the same now remains due and unpaid : And whereas it further appears by the oath aforesaid that divers goods and chattels, liable by law to be distrained for the said duties, are lying and being in a certain house sitviate in the of , in the district and county afore- said, now in the possession of These are, therefore, to authorize and require you, the above-named collectors, and either of you, calling to your assistance the constable or other peace officer within and for the of aforesaid, and in the jiresence of the said constable, or other peace officer, to demand entrance into the said house, and in case of resistance, or neglect or refusal to oj)on the same, to break open in the daytime the said house, and enter the same, and to distrain therein the said goods and chattels, and the distress there found to keep by the space of five days, at the costs and charges of the said , and if the whole of the said sum of , together with the said costs and charges, be not paid within the said five days, then the said distress having been first duly valued and appraised by two of the inhabitants of the said of , or other sufficient persons, to bo sold by you, and tlie overplus, if any. 474 APl'ENDIX P. of the moneys arising by sucli sale, after papng and deduct- ing the said sum of , and all costs and charges of taking, keeping, and selling the said distress, to be restored to the owner thereof. Given under our hands and seals at , within the said district, this day of , in the year of our Lord 18 . Commissioners of the Income Tax and Inhabited House Duties. (22). Warrant of Commitiiu')it. To and , collectors of the duties hereinafter mentioned for the of , in the district of , in the county of , and to the keeper of her Majesty's prison at Whereas in and by the , assessments of the duties payable under the Schedule of the Act 16 & 17 Vict. c. 34, for the of , in the district of , in the county of , for the year ending the 5th day of April, 18 , of hath been duly charged and assessed to the said duties in the sum of . And whereas it appears by the oath of , collector of the said duties appointed for the said , of , taken before us, whose hands and seals are hereunto subscribed and set, being two of the Commissioners of the Income Tax, acting in and for the district of aforesaid, that the said sum of as and for the duties so charged and assessed as aforesaid, hath been duly demanded of the said , and that he hath refused and neglected to pay the sum of , part of the said sum of , by the space of ten days after such demand as aforesaid; and it further appears by the oath aforesaid that the said sum of , for the duties charged and assessed as aforesaid, now remains due and iinpaid, and that no sufficient distress can or may be found whereby the same may be levied. Now, therefore, we, the said Commissioners, whose hands and APPENDIX D. 475 seals are liereunto subscribed and set, do hereby command you, the above-named collectors of the said duties, or either of you, to apprehend the said , and to take him to her Majesty's prison at , in the said county, and to deliver him to the keeper thereof, together with this warrant ; and we do hereby command you, the said keeper, to receive him, the said , into your custody in the said prison, there to be kept without bail until paj'ment shall be made, or security to our satisfaction be given for payment of the said sum of remaining due and unpaid as aforesaid, and also of the further sum of , which we, the said Commissioners, do adjudge to be reasonable for the costs and expenses of ajDprehending the said , and conveying him to prison. Given under our hands and seals at within the said district, the day of , in the year of our Lord 18 ] Commissioners of the ) Income Tax. INDEX. ABANDONMENT, what constitutes an, 222, 223, 225, 314. temporary, 223. re-entry in ease of an, 222, 223. rescue in case of, 314. of a bad distress warrant, 381, 382. in case of a second distress, 288. ABSOLUTE privilege from distress, 119 — 146. ABUSE, of a distress damage feasant, 307, 308. remedy for, 307, 327. of a distress whilst in the pound, 235. exceptions, 235, 236. rescue in case of, 314. ACCEPTANCE, of single instead of double rent, 281. ACKNOWLEDGMENT, of tenancy, when sufficient to authorise a distress, 36. ACT OF GOD, animals injured in pound by, 235. appoi'tionment of rent-ser'\'ice in case of, 22. in case of a rent -charge, 74. ACT OF LA.W, apportionment of rent-service by, 23. ACT OF PARTIES, apportionment of rent -service by, 23. ACTION, a power of distress implies an antecedent right of, 29. recovery of double rent by, 177. recovery of double value of goods fraudulently removed by, 202, 203. of replevin, 342—373. in Superior Court, 351, 364—370. in County Court, 352, 353, 359 — 364. joinder of causes of action in rei)lovin, 360. whore proceed« of diKtress insufficient, 264, 265. 478 INDEX. ACTIOT!^— CO,// hnu',1. discontinuance of, in replevin, 360. fur ■\vronirful distress, 320. no action for poor rates where there is a remedy hy distress, 377. for return of goods hi specif, 321. no action where defect in a poor rate, 383. for irregular distress, 326 — 334. for excessive distress, 334 — 341. where distress wrongful as well as excessive, 336. by a lodger, 339. when mortgagee can decline to defend replevin action, 3-50. ACTUAL seizure, 225. ACTUAL DEMISE, at a fixed rent, 29—32, 281. may be implied, 32. difierencc between a demise and a mere licence, 34, 35. ACTUAL USE, exemption from distress of things in, 139. in case of damage feasant, 301. as regards goods privileged sub modo, 146. ADMINISTRATORS, replevin by, 349. rights of executors and administrators inter sf, 60, 61. distress by, 57 — 61. when entitled to rent under the 8 Anne, c. 14 . . 273. time when they may distrain, 61. powers itnder 32 Hen. VIII. c. 37. .57—59. powers under 3 & 4 "Will. IV. c. 42. .58, 59. ADMIRALTY PROCESS, executions under, 279, 280. ADOPTION by landlord of bailiff's illegal acts, 208, 209. ADVANCE, rents payable in, 17, 18, 168—170. by custom, 168. under the 8 Anne, c. 14.. 271. ADVERTISEMENTS, expenses of, on a distress, 257. ADVOWSON, rent cannot issue out of an, 3. AGENT, power of distress by, 81, 82. as regards distress is considered as a bailiff, 82, 292. tender of rent to an, 292. AGISTMENT, of live stock for "fair price" under the Agricultural Holdings (Enghmd) Act, 1883.. 148, 149. in case of commoners, 299. INDEX. 479 AGEEEMENT, for future leases, 7 — 10. in case of excessive distress, 337. not to appeal in County Coiu-t action of replevin, 364. not to distrain, 283, 284. for interest on rent, 284. giving right to distrain, 36. right of distress maj^ be postponed by, 36. to distrain on other lauds than those out of which the rent issues, 192, 194. between commoners as to distress, 299, 300. as to waiver of action, 324. for tenancy when not put m, 325. AGRICULTLTRAL HOLDINGS (ENGLAND) ACT, 1883, as to live stock taken in to be fed at a "fair price," 147 — 149. meaniug of "fair price," 148, 149. as to agricultural machinery, 145. compensation in cases of deductions from rent, 177. distress by landlord for one year's rent under, 180, 181. AGRICULTURAL MACHINERY, exemption from distress under Agricultural Holdings (England) Act, 1883.. 145. ALLOTMENTS, under the Inclosure Acts, 51. ALMANACK, evidence of, as to meaning of simrise and sunset, 184. AMBASSADORS, exemi)tion from distress, 118. as to their domestics, 118. AMOUNT, of rent necessary for tender, 294. of rent for which a distress may be made, 171 — 174. must not be for more rent than is due, 171. where the rent consists of several amounts, 172. where different properties are included in the same lease, 171. where the rent is entire, 172, 173. under the Agricultui-al Holdings (England) Act, 1883.. 180, 181. ANIMALS, fci-(C italura, when privileged from distress, 141. ANNEXATION, what degree of, necessary to constitute a fixture, 122, 123. machinery annexed to soil deemed to be trade fixture, 122. ANNUITANTS, distress by, 6C, G7. . whore a term vests in trustees to the use of, 66. as to tenants in dower aud freebench, hi. 480 INDEX. ANNUITIES, cannot in general be distrained for, 66. disting-uishable from rent-charges, 66. where vested in trustees for a term, 66, 67. where payable out of freeholds and leaseholds, 66, 67. when distress for arrears of, may be made, 180. in case of underlease of a chattel, 62. ANVIL, smith's, when privileged from distress, 121. APPAREL, wearing, exemption of, on sale of distress under justices' warrant, 400. exemption under Law of Distress Amendment Act, 1888 . . 119, 140, 146, 163, 188. APPEAL, agreement not to, in replevin, 364. against a parish rate, 3'JO. against an order for restoration of railway rolling stock, 152, 153. against a distress for highway rates, 394. against an order for restoration of live stock, 150. against a distress by justices, 403, 404. costs of, 409, 410. in Coimty Court actions of replevin, 364. in case of fraudulent removal, 203. costs of, 203. how affected by Summary Jurisdiction Act, 1879. .207. notice of appeal, 207. in case of taxes, 405. APPLICATION, of proceeds of sale, 204. APPORTIONMENT (of rent), definition of, 21. in resi)ect of estate, 21 — 25. as regards rent-service, 21 — 24. on the alteration of the lessee's interest, 22. on piu'chase of tenancy, 22. by suiTender or forfeiture, 22. by act of God, 22. by eviction of lessee, 22. by person having title paramount, 22. by severance of lessor's reversion, 23. by act of law, 23. by act of the parties, 23. provisions of the Conveyancing Act, 1881 . .23, 24. as regards a rent-charge, 24, 25. difference between a rent-charge and a rent-service, 25. effect of 22 & 23 Vict. c. 35, s. 10. .25. in respect of time, 26 — 28. at common law, 26. Clun's Case, 26. remedies given by 11 Geo. II. c. 19, s. 15. .26. remedies given by 4 & o Will. IV. c. 22. .26. Apportionment Act, 1870. .26— 28. INDEX. 481 APPRAISEMENT, of a distress, 242 — 248. must be stamped, 245. penalty for not stamping, 245. stamj) duties, 245. number of appraisers required in, 246. landlord cannot sell before, 246. sale without, irregular, 246, 328, 330. does not of itself take away right to replevy, 248. measure of damages fur selling goods without, 330. for taxes, 396. appraised price only prima facie evidence of value of goods, 2o4. view and valuation, 248. when not required under the Distress Act, 1888. .244, 245. costs of appraisement, 244, 245, 256, 257. APPRAISERS, need not be sworn, 243, 246. number required, 243, 246. not necessary, unless required, 244, 245. sale by, when irregular, 247, 330. must be competent and disinterested, 247. who are interested parties, 247. need not be professional, 247. distrainor may not appraise, 247. formalities may be dispensed with, 248. valuation of goods by, 248. should sign the appraisement, 248. under the Distress Act, 1888. .244, 215. ARREARS (of rent), what landlord can claim against execution creditor, 142, 266, 267. recoverable under Agricultm-al Holdings (England) Act, 1883.. 180, 181. when rent is " in arrear," 164. ASSENT, to impoundmg, 239. ASSIGNMENT, by reversioners, 40. how it affects right to distrain, 41, 42. of goods to trustees, how it affects replevin, 348, 349. ASSISTANCE, in case of fraudulent removal, 201—204. ASSIZE, rents of, 17. ATTORNMENT, tenant by elegit can distrain without, 55. where there are two clauses of, in bankruptcy, 88, 89. when deemed to be a bill of sale, 100, 101. distress under, in a mortgage, 88, 91, 92, 109, 110. in case of receivers, 79, 80. in case of partners, 88, 89. sham rents in attornment clauses, 96—98. uncertainty of rent in attornment clauses, 98, 99. application for leave to distrain in case of attornment clause, 113, 482 INDEX. AUCTION, public, sale by, on distress under justice's warrant, 411. iu case of taxes, 396. price realised at a sale by, primd facie evidence of value, 255, 331. removal of goods to auction room under Distress Act, 1888. .239, 244, 245. costs of, 256, 257. AUCTIONEER, definition of an, 135. need not have licence where distress under 20/., 254. goods delivered to an, privileged, 134, 135. liability of, for goods in his hands, 136. refusal by, to deliver up goods, 340. when entitled to set up a '■^jus tertil,''^ 341. AUTHORITY, private receiver must have express, to distrain, 79. in case of the assignee of a mortgage, 79, 80. of bailitt'to receive rent and costs, 79, 292. what is evidence of authority to distrain, 209. AVOWRY, in actions of replevin, 366. AXE, in a man's hand is privileged from distress, 139. of a carpenter is conditionally privileged, 150. BAOKINa a warrant, on commitment to prison by justices, 403. BAILIFF, distress damage feasant by a, 308. cannot sell for payment of fees, where landlord has withdrawn, 262. iu cases of replevin, 360, 351. cannot act as an appraiser, 247. authority of a, to accept tender, 82, 292. cannot be limited by landlord, 292. is not the "person levying the distress," 251, 260, 261. misconduct of, 211. where tender of rent to a, is insufficient, 293. authority of a, to distrain, 207 — 213. power of mortgagor in possession to distrain as a, 210. appointment of a, by joint-tenants, 48, 215. rights of executors and administrators under 32 Hen. VIII. c. 37, s. 1..60. bailiffs under the Statute of Westminster II., 207, note (s). goods in the hands of a, are privileged, 142. corporations aggregate may appoint without deed a, 85. when landlord liable for acts of his, 208 — 210. reieivers and agents are considered as, 79. must give a copy of his charges, 261, 262. as to embezzlement by a, "/OSJ, 210. an infant cannot be appointed a, 207. of mortgagee, justification by mortgagor as, 90. INDEX. 483 BAILIFF— continued. appointment of, under the Law of Distress Amendment Act, 1888 . . 207, 208, 210, 211. certificates of, 207, 208, 212, 213. special certificate, 212. general certificate, 212. cancellation of, 213. security, 212, 213. fees for, 213. costs of, 257. BANKRUPTCY, distress in case of, 93 — 103. landlord's power of distress under, 93, 94. where goods in custody of receiver in bankruptcy, 80. provisions of the Bankruptcy Act, 1883. .93 — 96. landlord's rights where goods are removed from premises, 94. where he allows goods to remain on premises, 94. only extend to goods of bankrupt, 95, 96. where he has elected to take his remedy by proof, 99. sham rents in attornment clauses, 96 — 99. rights of a stranger who pays out a distress, 96. goods under a distress are not in the " order or disposition " of the bankrupt, 100. provisions of the Bills of Sale Act, 1878 . . 100. second distress in case of, 101, 102. as to payment by an under-lessee, 103. effect of bankrupt obtaining his certificate, 103. of constable, possessed of goods levied under a distress, 103. goods seized by a messenger under a, 143. fraudulent removal of goods where lessee is bankrupt, 200. warrant of commitment in case of distress for poor rates in, 386. BAE, entry by pulling out the bar of a door, 219. BARGAIN AND SALE, reservation of rent -service on a, 7. BARNS, entry by breaking open a bani-door, 219. BEASTS, of the plough, when pri\'ileged from distress, 146, 147. action for wrongful distress of, 332. BEDDING, exemption of, under the Law of Distress Amendment Act, 1888. . 119, 140, 146, 163, 188. BENEFICIAL enjoyment of premises in winding up of companies, 105 — 111. BILL OF EXCHANGE, effect of taking a, for rent, 285, 286. BILL OF SALE, when an attornment is deemed to be a, 100, 101. liability of goods on premises after fictitious, 142, 143. does not protect chattels against distress for poor rates, 382, 383. I I 2 484 INDEX. BIRDS, ia a cage, whcu privileged from distress, 141. BISHOP, sequestration by a, 86. BOAT, when privileged from distress, 128, 131. BOND, in reple%'in, 343, 353, 354, 355, 364, 372. recovery of sum deposited in lieu of, in replevin, 353, 373. BOOKS, of a scholar, when privileged from distress, 150. BREWERS' CASKS, when pri-\-ileged from distress, 133. BROKER, indemnity to, 216—218. liability of landlord for acts of his, 208, 209. on re-entrj^ must confine himself to same goods, 223. must give a copj'' of his charges, 257, 261, 262. imdertaking to indemnify, does not require an agreement stamp, 218. tender to a, 292. charges of a, in distress for poor rates, 354. costs of, 257, 259, 260. CANARIES, may be distrained, 141. CAPIAS IN WITHERNAM, writ of, 343, 367, 368. CARCASE of a beast, when privileged from distress, 126. CARRIAGES, standing at livery, are liable to be distrained, 128. sent to a coachmaker to be sold, when privileged, 134. CART COLTS, when privileged from distress, 147. CASKS, of a brewer, when liable to distress, 133. CATALOGUE, expenses of, on a distress, 257. CATS, cannot be distrained, 141. INDEX. 485 CATTLE, ■when clistrainable damage feasant, 302 — 304. obligation of owner to remove straying cattle, 303, 304. obligation to keep up fences, 304, 305. impounding of , 236, 240, 241. supply of food to, 231. must generally be impounded on the premises, 238. levancy and couchancy, 303. on their way to a fair, privileged, 127, 300, 301. at an inn, -when privileged, 136. on a common, distress of, 196. where di-iven off to avoid a distress, 196, 197. of strangers, when liable to distress, 116. unless they hold by title paramount, 116. taken in, to be fed at " fair price," 148, 149. CERTAIN RENT, 4—6, 33-35. CERTIFICATE, by chief clerk, how it affects right to distrain, 81. in case of bankruptcy, effect ot, 103. of bankruj»t, as regards poor rates, 366. of bailiffs, 207, 208, 211—213. special certificate, 212. general certificate, 212. security, 212, 213. cancellation of certificate, 213. fees for ceiiificate, 213. CERTIORARI, removal by, in actions of replevin, 352, 369, 370. in case of distress for poor rates, 393. CHANCERY (Court of), powers of receivers appointed by, 80. receivers have same powers as sequestrators, 80. CHARGES, of a distress for rent. {See Costs.) CHARTERS, when privileged from distress, 120. CHATTELS, bequests of, 62. CHIEF CLERK, certificate of, how it affects right to distrain, 8 1 . CHIEF RENTS, 17. CHURCHWARDENS, distress by, 80. CLANDESTINE removal of goods may bo fraudulent, 199. removal must always be pleaded specially, 200. murder in case of, 202. COGNIZANCE, in action of replevin, 366. 486 INDEX. CO-HEIRS IN GAVELKIND, distress by, 47. may joiu in signing a distress warrant, 215. are parceners by custom, 47. COLLECTOR, distress by, for taxes, 395. where they advance duties, 396, 397. COLOUR OF RIGHT, by owners of cattle on commons, 64, 65. COMMISSION, expenses of, on a distress, 257. COMMITTAL (to prison), in case of fraudulent removal, 203, 206. on non-payment of poor rates, 374, 386, 387. to enforce orders and convictions of justices, 397, 398, 401, 402, 405, 406. in ca^e of rescue of animals from pound, 318, 319. on non-payment of taxes, 397, 398. COMMITTEES (of lunatics), powers of distress by, 77. COMMON, distress of cattle on a, 195, 196. extinguishment of rights of, 65, 66. rent cannot issue out of a, 3. inclosure of, 65. colour of right by owners of cattle on a, 64, 65, 299. summary remedy for tithes in case of commons in gross, 74, 75. surcharge of a, 299. COMMON LAW PROCEDURE ACT, 1852, as to ejectment, 190, 191. COMMON RIGHT, rents distraiuable of, 19. distress imident to a rent-sei-vice of, 6. distress now incident to all rents of, 20. lords of manors may distrain of, 63. as to copyhold rents, 6, 17. as to a rent assigned for equality of partition, 46. COMMONERS, distress by, 64. distress damage feasant by, 298 — 300. commoners' rights inter se for damage feasant, 64. where the common is absolutely stinted, 64, 65. no distress where there is a colour of right, 64, 65, 298. where a commoner claims by custom, 65. restraint of a distress between, 65. extinguishment of rights of common, 65, 66. effect of 11 Geo. II. c. 19, s. 8 . . 66. right of distress in case of inclosure of a common, 65. right of distress may be given by agreement between, 299, 300. INDEX. 487 COMMUTATION (of tithes), how effected, 70, 71. COMPANIES, distress on the winding-up of, 103 — 113. provisions of the Companies Act, 1862 . . 103 — 111. stay of proceedings, 104. sects. 85, 87, and 163 must be read together, 104 — 106. the Companies Acts and the Judicature Act, 1875, s. 16, dis- tinguished, 93, 105. rule as to rent accrued before and after the winding-up, 106. distress where premises retained for the convenience of the winding-up, 106 — 111. marshalling of property where a lessor exercises his express and legal rights simultaneously, 112. where provisional liquidator appointed, 110. COMPENSATION, warrant for recovery of, 398 et seq. in the nature of a rent, 30, note [e). recovery of, for food supplied to animals in pound, 232, 233. COMPETENCY, of appraisers, 246, 247. COMPETITION between the Crown and a subject, 83, 117, 118. COMPLAINT, on distress for poor rates, 377, 378. COMPULSORY SALE, 251. CONCEALMENT, not necessary to be shown in case of fraudulent removal, 202. CONDITION PRECEDENT, rent payable on a, 170. to a sale, that notice be given of taking and cause, 229. that appraisement be made, 246. right to distrain taken away by non-performance of a, 282. CONDITIONAL privilege from distress, 146 — 151. CONSENT, by tenant that goods shall remain with distrainor until sale, 252, 253. as to coparceners, 45. by landlord that stranger's cattle shall be exempt from distress, 151. CONSOLIDATION. of proceedings for the recovery of rates, 378. CONSTABLE, bankruptcy of, when possessed of goods seized under a distress, 103. powers of, in Metropolitan Police District, 201. 488 INDEX. CONSTABLE— co» ^j« xed. payment or tender to, under justice's warrant, 404, 405. duty of, 404. liability of, 405. ■when lie may be called in, 405. when he may be called in in case of fraudulent removal, 201. when he may be called in in distress for rent, 223, 224. as to a special, 201. fines on, 396, 405. CONSTRUCTIVE SEIZUEE, of fixtm-es, 123. on distress for rent, 225, 226. CONVEYANCE, rent-service must be reserved on a sufficient, 7. CONVEYANCING ACT, 1881, in case of reservation of rent, 14. in case of apportionment of rent, 23, 24. as regard gi'antees of rent- charges, 70. CONVICTION, distress for enforcement of orders and convictions of justices, 398 —413. order for double value of goods fraudulently removed, is not a, 205. COPAKCENERS, distress by, 45 — 47. must join, or one alone can distrain, 45, 215. as to reple\-in by, 45. after partition several distresses may be made by, 45, 215. as to rent- charges, 45, 46. tortious acts of, 46, 47. unity of seisin in case of, 47. co-heirs in gavelkind are coparceners by custom, 47. COPPER affixed to a dwelling-house, when pri\'ileged from distress, 121. COPY, of inventory, 227. of broker's "^charges, 257, 261, 262. COPYHOLD RENTS, are in their very nature rents-service, 6, 17. rights of widow as to, in freebench, 54. distress by lords of manors of, 63. are not w"ithin the 32 Hen. VIII. c. 37. .59, 63. they are within the 4 Geo. II. c. 28, s. 5. .63. copyholders cannot be distrained upon for a rent- charge, 116. rent granted on enfranchisement ot, C, note [1). COPYHOLDER, when exempted from distress, 116. CORN, cut, impounding of, 241. sale of, 242. INDEX. 489 CO'R'N—co)iti>uicd. cocks and sheaves of, -when privileged, 137, 138. can be rendered by way of rent, 2. privilege of, when sent to a mill to be ground, 127. CORPORAL SERVICES, rights of executors and administrators as to, 60. CORPORATIONS, distress by, 82 — 86. corporations sole, 82 — 84. the Crown, 82, 83. its powers of distress, 83, 8'i. corporations aggregate, 84 — 86. leases must be under seal, 84, 85. may appoint a bailiff to distrain without deed or warrant, 85, 86. are liable in tort for their agents' acts, 85, 86. quasi-corporations, 86. COSTS, of a distress for rent, 256 — 262. where under 20/. . . 256 — 259. remedy in case of irregularity, 257, 258. treble the amount may be awai'ded, 258. where over 201. . .259 — 261. copy of broker's charges, 261, 262. action for not giving such copy, 261, 262, 331. of appraisement under Distress Act, 1888. .244, 215, 256, 257. of removal of goods to auction room, 244, 245, 256, 257. of impounding, 262. baihtt's remedy for costs where landlord has withdrawn, 262. in case of excessive charges, 331. sale of distress damage feasant for expenses of food, 305. treble, now abolished, 316, 317. recovery of, for food supplied to animals impounded, 232, 233. power of sale in default, 233. in actions of replevin, 352, 363. of appeal, in case of fraudulent removal, 203. tender of rent without, 291, 292. for poor rates, 385, 386, 387, 390. for highway rates, 393. in distress by justices, 400, 401, 410, 412. of broker for poor rates, 385. for rates, taxes, «S:c., 259, 396. CO-SURETY, right of distress by, 42, 43. COUNTY, in what, animals to bo impounded, 236, 237. distress where lands are in different counties, 194. driving a distress from one county to another, 237, 238, 331. of what, justices may convict on fraudulent removal, 205. COUNTY COURT, • » . claim of rent under an execution of a, 278, 279. as to stranger's goods, 279. duty and powers of registrar of, in replevin, 344, 351, 352. 490 INDEX. COUNTY COUHT— continued. fees payable in reple\aii, 356, 3o7. actions of repleviu, 352, oo3, 359—364. costs in, 352, 353, 363. rules of County Court in, 35-1—356, 360, 363, 365. search in, for replevins, 254. recovery of double rent when under 50/. . . 178. powers of, under the Agricultural Holdings (England) Act, 1883. 149, 150. as to aijpointment of bailiffs, 210—212. COURT, powers of receivers appointed by the, 80. COVENANTS, restrictive, 145, 255. COVERT pounds, 230. CRIMINAL OFFENCE, in case of rescue, 315. not necessary to make a seizui'e tortious, 335. CRIMINAL PRO^iECUTION, will not lie for an excessive distress, 335. CROWN, rights of, as against execution creditor, 267. can distrain on all lands for rent, 3. can distrain in highway and conunon street, 83, 195. powers of distress by, 83, 84, 117, 118. in case of underleases by tenants of, 83. in case of grantees of the Crown, 83, 84, 117. on lands under a sequestration, 84. whfre Crow-n comes into competition with a subject, 83, 117, 118. where entitled by office found, 117. can reserve rent to a stranger, 12, note (o). CROWN DEBT, no replevin lies for a, 346. CURTESY, distress by tenants by the, 54. CUSTODY OF THE LAW, things in the, are privileged from distress, 141 — 145. until sale, they remain in, 114. in case of interpleader proceedings, 142. CUSTOM, distress in case of devisees by, 61, 62. right of distress by commoners where there is a, 62. as to rents in freebench by, 54. rent payable in advance by, 108, 169. CUSTOM OF THE COUNTRY, in case of tenants holding over by, 38, 39. distress after expiration of tenancy in case of, 53, 186. INDEX. 491 DAMAGE, actual, must be proved in distress on growing' crops, 124. on selling goods before expiration of five days, 252. in case of distress damage feasant, 298, 305. in case of irregular distress, 329. sustained by goods removed to public auction room, 239, 256, 257. DAMAOE FEASANT, distress for, 297—310. definition of, 297. extends to inanimate things, 297. distinction between distress for rent and damage feasant, 298. the animals must be actually doing damage, 298. distress may be made in the night-time, 298. who may distrain, 298—301, 307. commoners, 298 — 300. tenants in common, 301. exemptions from distress, 301, 302. no importance attached to the fact of ownership, 301. cattle on their way to a fair, 3li0, 30 1. things in actual use, 301, 302. cattle cannot be taken in a highway, 301. distress where beasts escape through owner's neglect, 302 — 306. meaning of levancy and couctiancy, 303. cattle straying through defects of fences, 304, 305. for what damage animal can be distrained, 305, 306. second distress, 306. remedies for wrongful distress, 306, 307, 309, 310. in case of pound breach, 306. form of remedy at election of party injured, 306. double remedies cannot be maintained at same time, 306. notice of distress, 307. abuse of the distress, 307, 308. makes the disti'ainer a trespasser ab initio, 307. cannot be sold. 307, 308. sale of distress for expenses of food, 308. after tender of amends, 308. powers of corporations to appoint a bailiff without deed in cases of, 85. impounding of a distress, 308, 309. as to an irregular distress, 327. in case of rexjlevin, 347, 350, 359. DAMAGES, measure of, in illegal entry, 221. on excluding tenant from premises, 330. on seUing goods without appraisement, 248, 330. on sale of goods by appraiser, 330. for wrongful distress, 320 — 322. for exces.sive distress, 309. for irregular distress, 247, 326 et seq., 330. nominal damages, 329. in cases taken under execution, 276. when actual damage must be proved, 252. in High Court actions of replevin, 365, 367. 8pef;ial damages, 367. recoverable under vrrit of rei-aption, 370, 371. treble damages in case of rescue and pound breach, 316. as to fraudulent removal, 202. 492 INDEX. DEATH of cattle during a distress, 248. in poimd, 235. DEBTORS ACT, 1869, in case of appeal against justice's warrant, 410. DECLARATION, under the Lodgers' Goods Protection Act, 1871 . . 156, 162. DEDUCTIONS, from rent, 174 — 177. ■when tenant may make deductions, 175. should be deducted from the current year, 175. ground rent, 174. rent- charge, 175. property tax, 176. land tax, 176. rates, 176. tithe rent-charge, 176. compensation under Agricultural Holdings (England) Act, 1883. .177. in case of tender, 294. of costs on sale under justice's warrant, 412. by mistake, 39, 40. DEED, when necessary for the creation of a rent-charge, 15. necessary for demise of tithes, 75. DEER, replevin of, 348. when privileged from distress, 141. DEFEASANCE, of replevin bond, 372. DEFENCE, special, under 11 Geo. II. c. 19, s. 21.. 333. in High Coiu't actions of replevin, 366. DEMAND, of rent, -when necessary previous to a distress, 164, 165, 181 — 183. where power of distress after demand, 182. distinction between distress and re-entry as to, 164. what is a " legal" demand, 183, 184. of admittance necessary in re-entry, 222. entire, cannot be split, 287. in ejectment, 190, 191. in case of tender, 1S2. of a poor rate, 376, 377. where not necessary before issuing distress warrant by justices, 408. where trover can be brought without, 332. refusal of auctioneer to deliver up goods on, 341. under Law of Distress Amendment Act, 1888. . 146, 151, 188. DEMESNE, distress must be made whilst in possession of tenant in, 59. INDEX. 493 DEMISE, by churcliwardens and overseers, 86. by joint tenants, 49. must be by deed if of tithes, 75. when an instrument amounts to a present, 8 — 11. actual, at a fixed rent, 29 — 32, 281. where a hcence not sufficient to constitute a, 5, 34. in case of penalties, 5, 35, 36. DEPUTIES, of sheriff, jurisdiction in replevin, 350. DESTRUCTION of animals in the pound, 234, 235. DEVISEES, distress by, 61 — 63. by custom, 61, 62. distinction between a devise and a legacy, 62. DISCLAIMER, waiver of, 190. DISCRETION, must be used on sale of a distress, 234. DISPOSAL (or use), of a distress, 235, 307, 314, 328. DISTRESS, what constitutes a, 224, 225. is not confined to landlords and tenants, 29. by whom it may or may not be made, 29 — 113. express agreement giving right to distrain, 35. right of, may be postponed by agreement, 36. where there is an acknowledgment of an antecedent tenancy, 36. remains until complete surrender, 36, 37. distrainor must look to the land and not to the person, 1 14. all goods on premises (subject to exceptions) liable to, 114. immaterial in whose possession premises are at time of, 114. is incident of common right to a rent-service, 6. now incident to every species of rent, 20. power of, implies an antecedent right of action, 29. distinction between executions and distresses as regards fixtures, 120. amount of rent for which a, may be made, 171 — 174. demand of rent ju-evious to a, 164, 165, 181 — 184. Statutes of Limitation as to, 178 — 181. when to be made, as to time, 184 — 192. where to be made, 192 — 196. how to be made, 207 — 265. distress warrant, as to rent, 214 — 216. as to poor rates, 379 — 393. as to highway rates, 393, 394. as to justices, 398, 399, 402—404, 407, 408. after exphation of tenancy, 53, 185 — 188. waiver by, 189. on a highway or common street, 194. wrongful, 320—326. notice of a, 227 — 229. 494 INDEX. BISTR'ESS— continued. appraisement of a, 242 — 248. damajje feasant, 297, 310. distinction between distress for rent and damage feasant, 298. expenses of a, 256 — 262. seizure of a, 224 — 226. irregular, 247, 326—334. inventory of a, 226 — 228. excessive, 334 — 341. sale of a, 248—256. impounding a, 229 — 242. sm-plus proceeds of a, 262 — 265. on possession limited by statute, 118. of trespassing cattle, 302—306. treated in light of a pledge, 146, 242. goods privileged from, 119 — 151. goods privileged by statute, 151 — 163. proceedings in a distress for rent, 164 — 265. in case of banki'uptcy, 93 — 103. in case of mortgages, 87 — 93. in case of the winding-up of companies, 103 — 113. on stranger's goods, 116, 314. in case of fraudulent removal, 200. for poor rates, 374 — 393. for highway rates, 303, 394. for taxes, 395 — 398. on convictions of justices, 398 — 413. in case of fraudulent removal, 196 — 207. void al) initio, 321—323. persons exempted from, 115 — 119. by what means it may be taken away, 281 — 296. second distress, 2S6 — 291. restraint by injimction of a, 295, 296. DISTRESS WARRANT, for rent, 214, 215. for po<'r rates, 379—393. for highwav rates, 393, 394. for taxes, 395—398. as to justices, 398, 399, 402—404, 407, 408. must sjiecify time when distress to be sold, 381. DOGS, when pri-sdleged from distress, 139, 302. DOOR, breaking open a, 218, 220. DOUBLE COSTS, 72. DOUBLE REMEDIES, in actions for distress damage feasant, 306. in case of executions on same goods, 268. DOUBLE RENT, provisions of 11 Geo. II. c. 19, s. 18. .38, 177. recoverable by distress or by aftion, 177. where amount does not exceed 50/., recoverable in County Court, 178. acceptance of single instead of, 284. INDEX. 495 DOUBLE VALUE, recovery under 2 Will. & Mary, sess. 1, c. 5. .323. recovery imder 11 Geo. II. c. 19, s. 3. .202. DOWER. {Sir echo Tenants in Doweb.) annmties in case of, 54, 55. distress by tenants in, 54, 55. DUE, wlien rent is, 164 — 168. DUTIES of the distrainor as to impounding goods, 238, 239. EJECTMENT, as to distress, 37, 38. as to whether demand of rent necessary in, 164, 190. provisions of the Common Law Procedure Act, 1852, as to, 191. meaning of " no sufficient distress on the premises," 191, 192. strict search must be made on the premises, 191, 192. of tenant by mortg-agee, 91, 92. ELECTION, of remedy in case of excessive distress, 336. of remedy in case of damage feasant, 306. by landlord to take his remedy by proof, 99. ELEGIT (tenants by), distress by, 55. ELOIGNMENT, of goods in a rejalevin, 343. EMBEZZLEMENT, when a bailiff is a " clerk or servant, ' ' and may be found guilty of, 209, 210. ENGINE, when privileged from distress, 153. ENGLISH COURTS, execution of warrant of distress in, 412, 413. ENROLMENT, of a rent-charge, 15. ENTIRE, amount of rent distrainable where rent is, 172, 173. ENTRY, in distress for rent, 218—221. outer door cannot be broken open, 218. except in case of fraudulent removal, 218. but when outer door open, inner door may be broken open, 218. mode in which outer door may be opened, 219. 496 INDEX. :ENTRY— continued. illegal, 219—221. by opening a window fastened with a hasp, 219. by entering through a window which is shut but not fastened, 219. by climbing over a fence, 221. forcible entry, 221, 223, 224. measure of damages in, 221. legal, 219—221. through an open window, 221. by opening a door closed but not fastened, 220. by raising- a window already open, 221. into a pound to supply animals with food, 232. re-entry, 221—224. of plaint in replevin, 359. right of, where tithe rent-charge in arrear, 72 — 74. ESCAPE from pound, 235. ESCHEAT, distress by lords of manors by, 63, 64. ESTATE, apportionment of rent in respect of, 21 — 25. ESTOPPEL, where a receiver makes a lease without authority, 79. as to executors, 60. EVICTION, of lessee, apportionment of rent-service on, 22. by title paramount, how it affects right of distress, 37, 38, 115. EVIDENCE, of authority to distram, 209, 214, 215. of a poor rate, 376. in County Court actions of replevin, 361. appraised price is onlj primd facie evidence of value of goods, 254. price realised at vMcMon prima facie evidence of value, 255, 331. to prove an agreement, 325. under the 11 Geo. II. c. 19.. 332. requii-ed in action for excessive distress, 339. may be given that goods have been improperly sold, 254. of tenant's acts in fraudiilent removal, 204. of landlord's adoption of bailiff's illegal acts, 208. EXCESSIVE CHARGES, action against distrainor for taking, 331. EXCESSIVE DISTRESS, at common law, 334. by statute, 334. forms of action for, 334, 335. when trespass maintainable for, 334, 336. criminal prosecution does not lie for an, 335. whdt is "excessive," 335, 336. action, where wrongful as well as excessive, 336. plaintiff must have a property in the goods, 336, 337. special property, 337. INDEX. 497 EXCESSIVE DISTRESS— continued. agreements between distrainor and distrainee, 337. measure of damages in case of corn, 337 — 339. what must be proved in action for, 339. mode of calculating value of goods, 339, 340. joint actions for, 341. EXCLUSION, of tenant from the premises, 238—240. measure of damages in case of, 330. EXCLUSIVE, jurisdiction to grant replevins, 344, note [1), 356, 359. EXECUTION, rent- service in case of tenants under an, 55. goods under an, -when privileged, 140 — 145. for plaintiff in High Coiu-t action of replevin, 367. for defendant in High Coiu't action of replevin, 367. distinction between distress and execution as regards fixtures, 120. of a waiTant of distress by justices, 403. of a warrant in English and Scotch courts, 412, 413. distress by tenants under an, 55. EXECUTION CREDITOR, satisfaction of an-ears of rent by, 266 — 280. claim of rent by landlord under 8 Anne, c. 14. . 142, 266, 270. in. case of a weekly tenancy, 267. cases decided under the 8 Anne, c. 14. .267 — 271. persons who come within the statiite, 268. double executions on the same goods, 268. in case of a fraudulent bill of sale, 268. goods may not be removed till a year's rent is paid, 269. wrongful removal of goods, 269. what rent the landlord is entitled to, 271, 272. executors and administrators, when entitled under the statute, 273. liability of sheriff for rent, 270, 272, 273. notice to sheriff', 274, 275. notice to the execution creditor is luinecessary, 275. sheriff's duties, 275, 276. poundage, 276. discharge of sheriff, 276. the amount of rent may be disputed, 276. deduction of one year's i-ent on distress for taxes, 276, 277. executions under County Court process, 278, 279. as to the goods of a stranger, 279. executions under Admiralty process, 279, 280. EXECUTORS, distress by, 57 — 61. in underleases, 57. distress under 32 Hen. VIII. c. 37, s. 1 . .57, 58, 59, 60. distress under 3 & 4 Will. IV. c. 42, s. 37. .58, 59. on whose possession they may distrain, 59, 60. estoppel between, 60. cognizance by bailiffs, 00. rights of executors and administrators iiilcr sc, 60, 61. time when an executor may distrain, 61. O. K K 498 INDEX. BXECVTOnS—contimmL replevin by, 349. ■when entitled to rent under S Anne, c. 14. .273. EXEMPTIONS FROM DISTRESS, of persons, 114 — 119. of goods, 119— 1C3. in case of damage feasant, 301. as regards agents, 126. i:X PARTE, power of justices to proceed, on distress for poor rates, 382. EXPENSES, of a distress for rent. {Sec Costs.) of removal of goods to public auction room, 239. EXPIRATION, of tenancy, distress after, 53, 185 — 188. under Law of Distress Amendment Act, 1888 . . 146, lol, 188, 249—251. EXTINCTION, of rent, 22, 282. FACTOR, definition of, 135. goods delivered to a, x^rivileged from distress, 134 — 136. FAIR, rent cannot issue out of a, 3. cattle on their way to a, privileged from distress, 127, 300. FAIR PRICE, exemption of live stock to be fed at a, 148, 149. FEE, distress cannot be taken out of a, 193. remedy, 322. FEE -FARM RENT, definition of, 18. effect of creation before and after the Statute Quia Emptores, 17. how affected by the 4 Geo. II. c. 28, s. 22. .17. FEES, for brokers, 257, 259, 260. for bailiff's certificates, 213. scale of, under Distress Act, 1888. .259, 260. County Coiu't payable in Replevin, 356, 357. FENCE, obligation to keej) iip a, 304, 305. entry by climbing over a, 221. distress of cattle straying by defects in a, 303, 304. FEE^ NATUR.E, animals, when priNdleged from distress, 141. INDEX. 499 FERRETS, when privileged from distress, 139. in case of damage feasant by, 302. FEUDS, 1. FIXTURES, exemption from distress of , 120, 121. distinction between distresses and executions as to, 120. what degree of annexation necessary to constitute, 122, 123. liability of landlord on severance of, 123. constructive seizure of, 123. action for severing, 330. replevin does not lie for, 348. machinery, when deemed to be trade, 122. FLESH, of animals, when privileged from distress, 126, 137. FOOD, liability to supply cattle in pound with, 231, 232. entry into a pound to supply animals with, 232. recovery of compensation for food supplied, 233. FORCE, actual, not necessary to constitute pound breach, 312, 313. entry by, 219—221. measiire of damages on, 221. FOREHAND REXTS. {See Rent payable in Advance.) how affected by the 8 Amie, c. 14. .271. FORFEITURE, as regards apportionment of a rent-service, 22. waiver of, 188, 189. distinction between waiver by distress and waiver of forfeiture, 189. of bailiffs' certificates, 213. FORM, of action in distress, damage feasant, 306. in in'egular distress, 328, 329. in wrongful distress, 320. in excessive distress, 334 — 336. (For forms of lu-ocecdings in distress, replevin, &c., see Appendices.) FRAMES, used in woollen manufactories, when pri\'ileged from distress, 154, 155. FRANCHISE, rent cannot issue out of a, 3. exclusive jurisdiction to grant replevins in case of a, 344, n. (/), 35G. FRANKALMOIGN, rent under tenure of, 6. FRAUDULENT REMOVAL, provisions of the 8 Anne, c. 14, s. 2. . 196. landlord can follow and distrain within five days, 196. K K 2 500 INDEX. FRAUDULENT REMOVAL— oo« ^w ued. provisions of the 11 Geo. II. c. 19.. 196— 198. laudlord can follow and distrain within thirty days, 196, 197. excejition in favour of loud fide purchaser, 197. power to break open barns, &c., 197, 198. as to the removal, 198 — 200. clandestine removal, 199, 200. in case of lessee's bankruptcy, 200, 201. calling in a police- constable to assist, 201. distress in the Metropolitan Police District, 201. ti'eble damages in case of rescue, 202. remedies in case of, 202 — 207. recovery of double value, 202. where goods worth less than 50/. . . 202, 203. appeal, 203. FEEEBENCH, distress by tenants in, 54. FREEHOLD, exemption from distress of things annexed to the, 120. as to growing crops under 11 Geo. II. c. 19. . 123 — 125. FRONT DOOR, entry thi-ough the, 219. FRUIT, when pri-^Tileged from distress, 137. FURNISHED LODGINGS, rent can be distrained for on demise of, 3. FURNITURE, distress on, under hii-e purchase system, 226. FUTURE LEASES, agreements for, 7 — 11. GALE RENTS, 167. GAS, fittings, when privileged from distress, 120. companies, right of distress in case of bankruptcy, 95, 99, 100. payments to, are not rent, 95. meters, now liable to distress, 155, 156. stove, when privileged from distress, 155, 156. GATES, entry by breaking open, 219. GAVELKIND, right of distress by co-heirs in, 47. GENERAL CERTIFICATE, for bailiffs, 212. INDEX. 501 GOODS, of a lodger, when privileged from distress, 156 — 162. of a lodger in case of distress for poor rates, 375, 376. removal of, to public auction room, 239, 2-14, 245. costs of, 256, 257. ■what is e^-idence of value of, 255, 331. indemnity where broker takes goods privileged from distress, 217, 218. undertaking to indemnify does not require a stamp, 218. all, on premises liable to distress, 114. broker who re-enters should confine himself to same, 223. of a bankrupt, landlord's power over, 93 — 95, 99. what are bankrupt's goods, 96. in possession of a receiver, 79, 80, 94. removal of, from the premises before sale, 252, 253. fraudulent removal of, 196 — 207. privileged from distress, 119 — 163. by statute, 151 — 163. at an inn, when privileged, 136, 137. exemption of goods delivered to a person in the way of his trade, 12b et scq. exemption of things employed in carrying andfetclung away, 127. of stranger, as regards distress, 114, 116. GEACE, time of, allowed for rent, 167, 16S. GRAXAET, goods deposited in a, when privileged, 135. whether a fixture or not, 122. GRANTEES, of rent-charges, their rights of distress, 68 — 70. of the Crown, their rights of distress, 83, 84, 117, 118. GRASS, cannot constitute a rent, 3. GRATES, when privileged from distress, 121. GROUND RENT, deduction of, from rent, 174. GROWING CROPS, when privileged from distress, 123, 124. actual damage must be proved on distress of, 12-1. action for selling unripe, 331. replevin of, 348. distress of, after expiration of tcnanc)', 53, 186. when liable to be seized under an execution, 144. seizure of, when subject to a restrictive covenant, 111, 1 1 5 sale of, 143. GUARDIANS, their powers oi distress, 76, 77. under the Guardianship of Infants Act, 18S6 . . 6 leases by, 76. of a luiioD, exccs.sivc payments by, 381. 502 INDEX. GUESTS, temporary, at an inu, -wlicn their goods arc privileged, 137. HASP, entry thi'ongli window fastened by a, 219. HAY, distress of, 138, 139. HEIRS. {See also Co-heies in Gavelkind.) distress by, 5G, 57. may distrain for nomine pcence, 56. HERBAGE, cannot constitute a rent, 3. HIGH COURT, actions of replevin, 351, 364 — 370. HIGHWAY, remedies when distress on the, 322. distress cannot be taken on the, 194, 195. exceptions, 195, 196. distress damage feasant cannot be taken on the, 301. HIGHWAY RATES, distress for, 393, 394. recoverable in same manner as poor rates, 393. Summary Jurisdiction Act, 1879, does not apply to, 393. recovery of costs, 259, 393. warrant of distress for, 393. payment or tender of rate, 394. stay of proceedings, 394. ajjpeal against, 394. HIRE PURCHASE SYSTEM, distress as to, 226. HOMICIDE, in case of clandestine removal, 202. HONOR, exclusive jurisdiction of granting replevin in case of an, 344, note {J), 356. HORSES, can be rendered by way of rent, 2. straying ou a turnpike road not liable to be impounded, 241. when privileged from distress, 127, 128, 137. standing at livery are liable to be distrained, 127, 128. HOUSES, collector may break open, for taxes, 395. HUNDRED, rent cannot issue out of a, 3. HUSBANDRY, instruments of, when privileged from distress, 147. INDEX. 503 HUSBANDS AND WIVES, ^ their jjowers of distress, 77, 78. enlargement of husband's rights by 32 Hen. VIII. c. 37. .78. as to the Jilarried "Women's Property Act, 1882 . . 78. ILLEGAL ACTS, of bailiff and broker, 219—221. distinction between irreg-iilar and illegal acts, 219. ILLEGAL DISTRESS, under the Lodgers' Goods Protection Act, 1871.. 156, 157. {See Weoxgful Distress.) ILLEGAL ENTRY, 218—221. IMPLEMENTS, of trade, when privileged from distress, 150, 151. husbandry, 147. IMPOUNDING, at common law, 229. how altered by 2 Will. & Mary, c. 5. .230. different kinds of pounds, 230. pound overt, 230. pound covert, 230. distinction between the different kinds of pounds, 230, 231. piiblic and private pounds, 231. liability to supply food to animals in pound, 231. power to enter into a pound to supply animals with food, 232. compensation for food and water supplied, 233. power to sell animals for cost of food, 232, 233. state of the pound, 23-1. must be in a fit state, 234. applies to inanimate things, 234. liability of distrainor where cattle are stolen, 234, 235. where beasts injured whilst in pound, 234. where beasts injured by act of God, 235. escape from the pound, 235. abuse of the distress when in the pound, 235. exception in case of milch Idne, 235. liability of pound keeper, 231, 235, 236. place where a distress can be impounded, 236 — 239. impounding on the premises, 238, 241. what is an impounding, 239, 240. assent to impounding, 239. the distrainor cannot lock up the whole of the premises, 238, 240. an open field is a sufficient jjound for cattle, 210. horses straying on a tui-npike road not liable to be impounded, 241. com cut, impounding of, 241, 242. sale of, 242. •what must be impounded on the premises, 240, 241. costs of impounding, 262. of cattle, 241. tender before and after, 293, 294. rescue before, 312, 314. of a distress damage feasant, 308, 309. remedy fur not properly impounding a distress, 327. 504 INDEX. IMPROPER RESERVATIONS, of rent, 12, 13. INANIMATE THINGS, distress of, damage feasant, 297. impounding of, 234, INCLOSURE ACTS, allotments as to tenants in common under the, 51. INCORPOREAL HEREDITAMENTS, rent cannot issue out of, 3. INDEMNITY, to broker, 21G— 218. how far it extends to illegal or irregular acts, 216, 217. where broker takes goods privileged from distress, 217, 218. under the 5 & 6 Vict. c. 97. .72. undertaking for, does not require a stamp, 218. INFANTS, cannot be aj^pointed bailiffs, 207. leases by guardians of, 76. distress by guardians of, 76, 77. under the Guardianship of Infants Act, 18SG. .76. INJUNCTION, restraining a distress by, 11, 295, 296. restraining mortgagor who interferes with receiver, 81. INJURY, to cattle whilst in pound, 234, 235. INN, exemption from distress of goods in an, 136, 137. they must be within the premises, 137. only extends to temporary guests, 137. INNER DOOR, may be broken open where the outer door is open, 218, 219. INSTRUMENTS, of a man's trade or profession, when privileged, 150, 151. of husbandry, when privileged, 147. INTERESSE TERMINI, how it affects the right to distrain, 41. INTEREST, agreements for interest on rent, how it affects the right to dis- train, 284. INTERPLEADER, distress where interpleader proceedings pending, 142. INVENTORY, of goods distrained, 226—229. copy of. 227. notice of, 227—229. service of, 227. appraisement usually written on the, 248. imder the Lodgers' Goods Protection Act, 1871 .. 156. INDEX. 505 IRREGULAR, acts of bailiff, liability of landlord for, 208—210. distinction between illegal and iiTegiilar acts, 209. IRREGULAR. DISTRESS, what is an, 326. how altered by the 11 Geo. 11. c. 19.. 326, 327. construction of this statute, 327, 328, 329. forms of action for, 328, 329, 330. damages recoverable for, 326, 327, 329, 330. instances of irregularity, 3^6, 329 — 331. who to make parties to the action, 332. special defence under 11 Geo. II. c. 19, s. 21.. 332, 333. plea of not guilty by statute, 333. party guilty of an, is no longer a trespasser ah initio, 326, 327. tender of amends after an, 327. sale by appraisers, when irregular, 247, 330. IRREGULARITY, instance of, in irregular distress, 326, 329 — 331. JOINT ACTIONS for an excessive distress, 341 . JOINT OWNERS in replevin, 349. JOINT TENANTS, distress by, 47 — 50. severance of the estate of, 48, 49. tortious acts of, 48, 49. demise by, 49, oO. when exempted from distress, 116. reple\Tn by, 349. as to signing a distress warrant, 48, 215. JUDGMENT, in High Court actions of replevin, 367. of the High Court, how it affects right to replevy, 346. in County Court actions of replevin, 362. in case of damage feasant, 362, 363. in cases other than distress, 363. JUDICATURE ACTS, how they affect an agreement for a lease, 9. how they affect the rights of a mortgagor in possession, 93. sect. 10 of the Judicature Act, 1875, does not apply to sect. 42 of the Bankruptcy Act, 1883. .93, note (y), 105. JURY, question of what is a fraudulent removal is for the, 199. JUS TERTII, when auctioneer entitled to set up, 341. JUSTICES, recovery of double value of goods fraudulently removed, 202 — 207. application to, in case of excessive charges of a distress for rent, 257, 258. 506 INDEX. JJJSTICE^-confimied. juri-sdietion as to pound-breach, 318. distress for the enforcemeut of orders and convictions of, 398 — 413. warrant for recovery of jicnalty, or compensation on convic- tion, 398, 399. or of sum required to bo paid by an order, 399. poM-er to postpone issuing of a warrant, 399. recovery of costs wliere information dismissed, 400. the costs must be specified iu the order of dismissal, 400. as to the warrant of distress, 402-407. as to the summons, 407, 408. when a demand not necessary, 408. as to the order for the warrant, 408, 409. appeal against, 409, 410. warrant of distress should not be issued iiending appeal, 403, 404. one justice may issue a siunmons or a wan-ant, 406. protection to justices, 407. commitment to prison, 400, 401, 404—406, 409. costs, 400, 409, 412. where distress would be ruinous, or there are no goods, 401. when defendant may be allowed to go at large, 402. warrant of commitment, 406. return of " /ndla ho»a,^' 406. where no remedy is provided in default of distress, 409. execution of warrant of distress in English and Scotch courts, 412, 413. appeal, 403. costs of, 409, 410. sale of the distress, 411, 412. exemption of wearing apparel, 400. power of, to proceed ex parte in distress for poor rates, 382. refusal of, to grant warrant of distress for poor rates, 383. costs on non-jjayment of poor rates, 385, 387, 390. on non-payment of highway rates, 393. JUSTIFICATION of distress by mortgagor as bailiff of mortgagee, 90. KEYS, when privileged from distress, 120. KITCHEN RANGES, when privileged from distress, 121. LAMMAS LANDS, siunmary remedy in case of tithes, 74, 75. LAND, distrainor must look to the, and not to the person of the lessee, 114. upon what part of the, distress may be made, 192—196. LAND TAX, deduction of, from rent, 174, 175. costs of distress for, 259. INDEX. 507 LANDLORD, "succeeding-," under 14 & 15 Vict. c. 25, s. 1, can recover his pro- portion of rent by distress, 4-t, 45. does not lose his power of distress, though goods in the custody of a receiver, 82. right of distress in case of bankruptcy, 93 — 96. liability of, on severance of fixtures, 123. must not interfere with tenant's enjoyment of house in impound- ing, 239, 240. liability of, for selling goods without an appraisement, 247. as to personal liability, 258. to what rent landlord is entitled vmder 8 Anne, c. 14 . . 244, 271, 272. notice of claim for rent, 266. discharge of sheriff on landlord taking security for rent, 276. claim for rent on execution of County Court process, 278, 279. tender to a, 292. replevin lies against a, 350. liability of, for acts of broker, 208—210. on waiver of execution landlord's right to distrain revives, 278. cannot act as an appraiser, 247. cannot sell the goods to himself, 247. in more favourable position than mortgagee with attornment clause, 113. LAW OF DISTRESS AMENDMENT ACT, 1888, exemption of wearing- apparel, bedding-, and tools of trade to value of 5;... 119, 140, 146, 163, 188. as to certificates of bailiffs, 207, 208. as to removal of goods to public auction room, 239. as to sale, 249, 250. extension of time to replevy, 249—251. as to appraisement, 244, 245. costs of, 256, 257. as to costs, 256—262. LEASES, whether an instrument operates as a lease, or an agreement for a, 8—11. rule since the Judicature Acts, 9. by joint tenants, 49, 50. between tenants in common, 51. by tenants in tail, 52. by tenants for life, 52, 53. by guardians, 76. by corporations, 83. by churchwardens and overseers, 86. by quasi -coi"porations, 86. in case of mortgages, 89 — 93. distress after dctennination of, 53. amount of rent distraiuablc where different properties are included in the same, 171. LEAVE TO DISTRAIN, in case of companies, 101 — 111. landlord in more favourable jDosition than mortgagee Avith attom- irK.iit clause, 113. LEaAL, entry, 218, 219. re-entry, 221—224. 508 INDEX. LEGATEES, distress bj, Gl, G2. distinction between a devise and a legacy, 62. as to goods in possession of a receiver in a legatee's suit, 143. LEVANCY AND COUCHANCY, meaning of, 303. LIABILITY, of sheriff under S Anne, c. li. .270. of pound keeper, 231, 234, 235. of solicitor, on undertaking given on bcluilf of tnistce of bankrupt tenant, 102. of landlord, for illegal and irregiilar acts of bailiff, 208 — 210. of landlord, for selling goods -without appraisement, 246. to supply cattle in pound with food, 231 — 233. LICENCE, difference between a demise and a, 34, 35. personal, in case of mortgages, 92. to distrain cannot be transferred, 92. LIMEKILN, aflBxed to freehold cannot be distrained, 120. LIMITATIONS, Statutes of, 178— ISO. effect of Agricultural Holdings (England) Act, 1883..1S0,18I. LIQUIDATOR, appointed for winding-up of a company, 105 — 111. provisional, 110. where he retains possession, 106 — 109. his powers of sale, 110. LIVE STOCK, exemption from distress of, when on premises for breeding pur- poses, 147—149. LIVERY, horses standing at livery are liable to be distrained, 127, 128. LOCKING up premises when goods impounded therein, 240. LODGER, goods of, when privileged from distress, 150, 156 — 162. provisions of the Lodgers' Goods Protection Act, 1871. .156 — 162. action by, for an excessive distress, 339. goods of a, in case of a distress for poor rates, 375. service of declaration and inventory by a, 156, 162. meaning of the word "lodger," 158, 162. provisions as to fraudulent removal do not apply to the goods of a, 200. LODGERS' GOODS PROTECTION ACT, 1871, provisions of, 156 — 162. declaration and inventory under the Act, 156, 162. notice under the Act, 156, 162. who are lodgers, 158 — 162. INDEX. 509 LODGINGS, rent can be disti'ained for on demise of fuvnislied, 3. LOOM, when privileged from distress, 140. LORDS OF MANORS, distress by, 03 — 66. may distrain of common right, 63. no distress where a lord parts with his manor, 63. right to distrain by reason of escheat, 63, 64. as to copyhold rents, 63. LUNATICS (Committees of), their jjowers of distress, 77. MACHINERY, under Agricultiu-al Holdings (England) Act, 1883, when privileged from distress, 14.5. when conditionally privileged, 127. when deemed to be trade fixtures, 122. MAGISTRATE. {See aho Justices.) when replevin lies against a, 350. MALICE, express, need not be proved in excessive disti-ess, 339. M^VN IN POSSESSION, tender of rent to a, effect of, 292. costs of, 257. MANDAilUS, to compel payment of poor rates, 379, 383, 384, 385. to whom dii-ected, 385. protection to persons acting under a, 383. one writ of, may compel the issue of two warrants of distress, 384, 385. MANOR, pound, 234. MANORS (Lords of), distress by, 63 — 66. may distrain of common right, 63. no distress where lord parts with liis manor, 63. right to distrain by reason of escheat, 63. MANUAL, services in the nature of a rent, 2. MANUFACTORIES, frames used in woollen, when privileged from distress, 154 — 156. MARKET, goods or cattle at a, when privileged, 127. MARLBRIDGE (Statute of), as to distress taken on the highway, 193, 195, 322. as to replevin, 343. as to excessive distress, 334, 335. as to impounding, 236. 510 INDEX. MAEEIED WOMEN, distress by Imsbands and Tvivcs, 77, 78. as to the Manied Women's Property Act, 1882 . .78. replevin by, 349. MARRIED WOMEN'S PROPERTY ACT, 1882, as regards distress for rent, 78. MARSHALLING of property, -where lessor exercises express and legal rights simul- taneously, 112, 113. MERCHANT (Statute), distress in case of, 55. MERGER of the reversion takes away right to distrain, 282. MESSENGER, goods seized by a messenger under a bankruptcy, when privileged, 143. METROPOLITAN POLICE DISTRICT, as to distress in case of fraudulent removal, 201. summary remedy on wrongful distress in, 325, 326. MIDNIGHT, rent not in arrear until after, 164, 165. MILCH KINE, abuse of, when in pound, 235. MILK, when privileged from distress, 137. MILL, corn sent to be ground at a, when privileged, 126. stone, when privileged from distress, 121. MINERALS, machinery working, when trade fixtures, 122. MINES, ore worked from, can constitute a rent, 3. MISCONDUCT, of tenant, second distress allowed in case of, 290. MISTAKE, in value of goods in second distress, 288, 289. payment made by, 288, 289. in costs of appeal under justices' warrant, 410. deduction of land tax by, 39, 40. MONET, rent need not be in, 2. when privileged from distress, 137. replevin does not lie for, 348. refunding of, on distress for poor rates, 389, 390. INDEX. 511 MORTGAGEE, with attornment clause, leave to distrain, 113. ■when he can decline to defend replevin action, 350. MORTGAGES, distress in case of, 87 — 93. power of distress in case of an attornment, 88. what is necessary to constitute the relation of landlord and tenant, 88. separate attornments, 88, 89. uncertainty in the amoimt of rent, 98. to what an attornment extends, 88. sham rents in an, 96, 97. leases made before and after the date of the mortgage deed, 89 — 93. lease made contemporaneous with the date of the mortgage deed, 92. a mortgagor in possession may distrain as haihff of the mortgagee, 210. MORTGAGOR, restraint of, on interfering with receiver, 81. justification by, as bailiff of mortgagee, 90. MULES, for spinning cotton, when privileged from distress, 121. MURDER, in case of clandestine removal, 202. NETS, when privileged from distress, 139. in case of damage feasant, 139, 302. NEW TRIAL, in County Court actions of replevin, 363. NIGHT-TIME, distress for rent cannot be made in the, 184. exception in case of damage feasant, 298, as to fraudulent removal, 204. NOMINAL DAMAGES, in case of irregular distress, 329. NOMIXE FCENJE, heirs may distrain for, 58. are not within the 32 Hen. VIII. c. 37. .60. demand, when necessaiy in case of, 1G4. NONSUIT, in High Court actions of replevin, 366, 367. NOT GUILTY BY STATUTE, plea of, in irregular distress, 333. NOTICE, of distress, 227—229. what it must contain, 228, 229. service of, 227. parol notice insufficient, 227. want of notice, 228, 229. 512 INDEX. NOTICE— co>iHnucd. of distresH damage feasant, 1307. by landlord of claiiri for rent under 8 Aune, c. 14. .26G, 274, 275. to sheritf of arrears of rent, 274, 275. of appeal in County Court actions of replevin, 3G4. to quit, 38, 39, 177, 188. in case of mortgages, 88 — 92. waiver of notice to quit, 190. of appeal under Bailway Rolling Stock Protection Act, 1872.. 152, 153. in case of fraudulent removal, 203. to officer, where poor rate ordered to be quashed, 389. under the Lodgers' Goods Protection Act, 1871 . . 15G, 161, 1G2. NOTICE OF APPEAL, against an order for restoration of railway rolling stock, 152, 153. in case of fraudulent removal, 203. NOTICE TO QUIT, right of distress where tenant holds over after a, 38, 39. in case of a weekly tenant, 39. in case of custom of the country, 39. under the 11 Geo. II. c. 19, s. 18.. 177. waiver of, 190. NULLA BOXA, return of, under warrant of justices, 406. OATH, of appraisers, 243, 246. OCCUPATION, of premises retained for the convenience of the winding up of a company, 105 — 110. in case of distress for poor rates, 375 — 377. OFFICE, right of distress where the Crown enters without record or, 117. OPEN (field) whether a sufficient pound, 230, 240. ORDER, in case of fraudiilent removal, 203, 205, 206. in case of vsrongful distress in the Metropolitan Police District, 326. distress for enforcement of justices, 398 — 413. no order need be observed on sale of a distress, 255. ORDER OF ADJUDICATION, meaning of the words, 96. ORDER OR DISPOSITION, goods taken under a distress are not in the banki-upt's, 100. OUTER DOOR, cannot be broken open on a disti'ess for rent, 218. exception in case of fraudulent removal, 197, 218. OUTLAWRY, in civil proceedings now abolished, 143, note (//). INDEX. 513 OVERPLUS, after sale of a distress, 2G2, 265. of sale to be left in sheriff's hands, 262, 263, 331. meaning" of, 263. to whom paid, 263. action where proceeds of a distress insufficient, 264. return of surplus proceeds, 264, 265. in case of taxes, 396. OVEESEEES OF THE POOE, distress by, 86. powers of succeeding- overseers, 374, 375. OVEET, pound, 230, 234. OWNERSHIP, of animals in case of damage feasant, 301. PADLOCK, entry by forcibly ox)ening a, 219. PAEISH OFFICEES, distress by, 86. PARISH EATE, appeal against a, 390. PAEK, deer in a, when privileged from distress, 141. PAEOL, notice of distress, insufficient, 227. PAREOTS, are liable to a distress, 141. PAETICIPATION, in case of fraudulent removal, 204. PARTITION, coparceners may make several distresses after, 45, 46. voluntary partition by joint tenants, 49. PARTNEES, separate attornments by mortgagors, who are, 88, 89. PARTRIDGES, when privileged from distress, 141. PAVING EXPENSES, deduction of, from rent, 176. PAWNBROKERS, goods in possession of, when privileged, 136. PAYMENT, of arrears of rent, how it affects right to distrain, 291. made by mistake, 288, 289. to a constable under a justice's warrant, 404, 405. of rent, not conclusive admission of title, 176. to redeem goods from wrongful distress, 332. excessive, by guardians of a union, 381. (). I' L 514 INDEX. PAYMENT INTO COURT, iu ease of replevin, 366. PENALTY, wan'ant for recoveiy of a, 398, 399. for not stamping an appraisement, 245. in the nature of a rent, 5, 35. PERISHABLE GOODS, •R-hen privileged from distress, 137. PERSONAL CHATTEL, rent cannot issue out of a, 3. PERSONS who may distrain, 40—113, 298—301. exempted from distress, 115 — 118. PHEASANTS, when privileged from distress, 141. PISCARY, rent cannot issue out of a, 3. PLACE, where the distress may be made, 192 — 196. may be made on any part of the land, 194. where goods may be levied for a j)oor rate, 392. PLAINT, entry of, in County Court action of replevin, 359. PLANTS, when privileged from distress, 124. PLEA IN BAR, in actions of replevin, 366. PLEDGE, distress treated in the light of a, 146, 242. after tender, landlord should keep the distress as a, 294. PLOUGH, beasts of the, when privileged from distress, 146, 147. POLICE OEEICER, 103, 201, 223. [See Constable.) POOR, distress by overseers of the, 86. POOR RATES (distress for), 374—393. power of committal in default of distress, 374, 386. power of succeeding overseers, as to, 374, 375. occupation in case of, 375 — 377. Summary Jurisdiction Act, 1879, does not apply to, 375. lodgers' goods as to, 375, 376. second distress in, 376. as to the rate, 376. demand of the rate, 376, 377. no action, where there is a remedy by distress, 377. complaint, 377, 378. consohdation of jDroceedings for the recovery of rates, 378. INDEX. 515 POOE RATES (distress ior)— continued. summons, 378. service of, 378. warrant of distress for, 379 — 385. abandonment of a bad warrant, 381, 382. to whom directed, 382. when justices are bound to issue a, 383. one warrant may be issued against any number of persons, 383, 384. mandamus, 383 — 385. power of justices to proceed ex parte, 382. bill of sale not to protect chattels against poor rates, 382, 383. refusal by justices to grant wai'rant, 383. protection to justices, 383, 384. costs, 259, 385—388, 390. order for levying, 385, 386. broker's charges, 386. commitment iu default of distress, 386, 387. warrant of, 386. costs of, 387. tender of rates and costs, 388. stay of proceedings, 388, 389. appeal against, 388, 389. notice of, 391. refunding of money, 389, 390. validity of rate cannot be tried by special case, 390. place where goods may be levied, 391, 392. place where appeal may be had, 392. certiorari, 393. POSSESSION, distress on possession limited by statute, 118. colourable, in case of fraudulent removal, 204, 205. of premises retained for the convenience of the winding-up of a company, 105 — 110. abandonment by cj^uitting, 222, 223. temporary abandonment, 223. immaterial in whose possession premises are at the time of a dis- tress, 114. necessary in case of entry, 222. necessary in case of rescue, 311. POSTPONEMENT, of issue of a warrant, 399, 400. of right of distress by agreement, 36. POUND, different kinds of, 230, 231. covert, definition of, 230. distinction between the different kinds of, 230, 231. liability to supply food to cattle in, 231. liability of the pound keeper, 231, 234, 235. entry into, to supply animals with food, 232. recovery of compensation for food and water supph'e.l, 232, 233. state of the pound, 234. theft from a pound overt, 234. injury to beasts whilst in the, 234, 235. escape from the, 235. abuse of the distress whilst in the, 235. exception in case of milch kinc, 235. L I. 2 516 INDEX. FOJINB— continued. release of cattle from the, 317, 318. pound-breach, 312—319. rOUND -BREACH, definition of, 312. actual force not necessary to constitute, 312, 313. what amounts to a, 313. remedies for unlawful, 315 — 319. at common law, 315, 316. in case of damage feasant, 316. in case of distress for rent, 316. recovery of treble damages, 316. POUND KEEPEE, obligation of, to supjjly food, &c., 231. is bound to receive everything offered to his custody, 235. is not answerable if thing be legally impounded or not, 235. no action lies for merely recei\Tng the distress, 235. when he can let cattle out of a pound, 236. cannot bring an action if the pound be broken, 236, POUNDAGE, sheriff entitled to, under 8 Anno, c. U. .276. PRECEDENT, rent payable on a condition, 170. PRICE, realised at auction prima facie evidence of value, 255, 331, meaning of " fau- price" under the Agricultural Holdings (Eng- land) Act, 1883.. 148, 149. meankig of " best price " on sale of a distress, 254, 331. PRIORITY, where crown comes into competition -nith subject, 83. PRIVATE POUNDS, 231. PRIVILEGE, persons exempted from distress, 115 — 118. goods privileged from distress, 118 — 151. goods privileged by statute, 151—163. absohite, 119—146. conditional, 146 — 151. PROCEEDINGS, stay of, in case of poor rates, 388, 389. in case of highway rates, 394. on execution of warrant of distress by justices, 403. on the winding up of companies, 103, 104. PROCEEDINGS (in distress). Statutes of Limitation, 178 — 181. distress, when made, 184 — 192. distress after expiration of the tenancy, 185—188. distress, where made, 192—207. fraudulent removal, 196 — 207. distress, how made, 207 — 265. as to bailiff,-, 207—213. warrant of distress, 214, 215. INDEX. 517 PEOCEEDIXGS (in distress)— contmucd. indemnity to broker, 216 — 218. entry, 218—221. re-entry, 221—224. seizure, 224 — 226. inventory, 226—229. impounding, 229 — ^242. appraisement, 242 — 248. sale, 243, 248—256. expenses of sale, 243, 256—262. surplus proceeds and unsold goods, 262 — 265. satisfaction of arrears of rent by execution creditor, 266 — 280, PROCEEDS of sale, application of, 263. PEODUCE, of sale, how to be disposed of, 263. ■wrongful retainer of, on sale of distress under justice's warrant, 411, 412. PROFESSION, instruments of a man's, when privileged from distress, 150, 151. PROFESSIONAL, appraisers need not be, 247. PROFIT, rent must always be a, 2. right of distress in case of special, 300. PROMISSORY NOTE, effect of, in taking away right to distrain, 285. in case of companies. 111. PROPERTY, in goods necessary in replevin, 348. in goods necessary in excessive distress, 336, 337. special property, 114, 337. PROPERTY TAX, deduction of, fi'om rent, 176. PROSECUTION, "with effect and without delay," 343, 344, 351, 357—359. criminal, will not lie for an excessive distress, 335. PROSECUTOR, committal to prison on non-payment of costs by, 406. PROTECTION, to justices in case of convictions and penalties, 407. to justices in case of poor rate, 383. PROVISIONAL liquidator, right of distress in case of, 110. PUBLIC, trade, meaning of, 125, 126. when agents held to be carrying on, 126. auction, sale by, of distrchs under justice's warrant, 111. 618 INDEX. PUBLIC POUNDS, 231. PURCHASE, of tenancy, apportionment of rent-service on, 22. QUAKERS, pro^'isions as to tithe rent- charges in case of, 73. may affirm, under sect. 4 of 11 Geo. II. c. 19. .203. QUIA EMPTORES, how it affects a rent service, 14. a fee farm rent, 17. QUIT RENTS, 17. RABBITS, when privileged from distress, 141. RAILS, on a railway, when j)rivileged, 122, 123. RAILWAY ROLLING STOCK, when privileged from distress, 151 — 154. RANGE, kitchen, when privileged from distress, 121. RATES, payment of, in full, on Avinding-up of companies, 110. deductions from rent on payment of, 176. poor, distress for, 374 — 393. validity of, cannot be tried by special case, 390. of toll in regard to comj^anies, 132, 133. RATIFICATION, by landlord of bailiff's illegal acts, 208, 209. REASONABLE TIME, allowed for removal, 252. meaning of, 252. RECAPTION, writ of, 370, 371. RECEIVERS, distress by, 78—81. negligence by, 81. are considered as bailiflPs, 79. estoppel where receivers make leases without atithority, 79. private, must have express authority to distrain, 79. distinctions between powers given by the Court and by private in- dividuals as to, 79. in case of attornment, 79, 80. bankruptcy, as to, 80. receivers appointed by Court of Chancery have same power as sequestrators, 86. goods in possession of a receiver in a legatee's suit are distrain - able, 143. interference with. 296. INDEX. 519 RECOED, right of distress where the Crowu enters without office or, 117. RE-ENTRY TO DISTRAIN, when lawful, 221, 222. demand of admittance first necessary, 222. when illegal, 222. in case of abandonment, 222, 223. broker on, should confine himself to same goods, 223. in case of the winding-up of companies, 112. distinction between distress and re-entry in case of demand, 164, 165. REFUNDING-, of money paid on distress for poor rates, 389, 390. REFUSAL, of justices to grant a distress warrant for poor rates, 383. REGISTRAR, of County Coiirts, jimsdiction in replevin, 34-1, 351, 352. habifity of, for taking insufficient siu'etiesin replevin, 355. REGISTRATION, of rent-charge, 15. RELEASE, from a rent-charge under 22 & 23 Vict. c. 35, s. 10. .25. REMEDIES, for pound-breach, 315 — 319. for wrongful pound-breach on distress damage feasant, 307. for rescue, 315 — 319. for wrongfiil distress, 320 — 326. for irregular distress, 326 — 334. REMOVAL, of goods on a distress, 252. of goods to a pubhc auction room under the LaAV of Distress (Amendment) Act, 1888. .239. costs of removal, 256, 257. temporary, of fixtures does not destroy their exemption from dis- tress, 121. of goods ofl' the premises under the 8 Anne, c. 14 . . 269, 270. by certiorari in action of rei>levin, 352, 368 — 370. measiu-e of damages for not removing in reasonjible time, 330, 331. of goods, when fraudulent, 196 cL seq. mere removal of goods, not of itself fraudulent, 199, 200. of fm-niture on hire purchase system, 226. RENEWAL, of old tenancy makes a distress valid, 190. RENT, origin of, 1. essentials of, 2—6, 33, 34. must be certain, 4 — 6, 33, 34. reservation of, 7 — 19. 620 INDEX. WENT—conCuiKed. several kinds of, 6 — 20. rent-service, 6 — 14. rent-cliarge, 14, 15. grantees of rent -charges, 15, G8 — 70. rent-seek, 16, 17. fee farm rent, 16, 17. rents of assize, 17. chief rents, 17. copyhold rents, 6, 17. quit rents, 17. rents payable in advance, 17, IS, IGS — 171. rents distrainable of common right, 19. distress now incident to every species of rent, 20. seisin of, 20. apportionment of, 21 — 28. actual demise at a fixed, 29 — 32. under 8 Anne, c. 14. .266, 267, 270, 271—273. is of a hig'her nature than a specialty debt, 285. ixnder County Court process, 278, 279. under Admiralty process, 279, 280. tender of, 291—294. due before and after winding-up of companies, 103 et seq. distress for, in case of bankruptcy, 93 — 103. mortgages, 87—93. sham rents in attornment clauses, 96 — 98. uncertainty of rent in attornment clauses, 98, 99. •when due, 164 — 168. when in arrear, 164. gale, 167. payable on a condition precedent, 170. amount of, for which a distress may be made, 171 — 174. deductions from, 174 — 177. double, 38, 177, 178. demand of, previous to a distress, 104, 181 — 184. under tenure of frankalmoign, 6. penalties in the nature of a, 5, 35. effect of taking securities for, 285, 286. payments to gas companies are not, 95. RENT-CHAUGE, why so called, 15. deed necessary for its creation, 15. enrolment and registration of a, 15. where created without power of distress, 15, 16, 52. difference between rent -servdce and a, as regards apportionment, 25. how it differs from a rent -seek, 16. how it differs from a tithe rent-charge, 70, 71. how distinguishable fi-om an annuity, 66. under the Tithe Commutation Acts, 70 — 76. apportionment of a, 24, 26. copyholders cannot be distrained upon for a, 116. distress on cattle of joint tenants for a, 116. distress by grantees of a, 68 — 70. interest of mortgagor in possession cannot support a, 69. provisions of the Conveyancing Act, 1881, as to a, 70. deductions of, from rent, 175. demand of, when necessary, 164, 181 — 184, how affected by act of God in case of tithe i-eut-charge, 74. INDEX. 521 RENT PAYABLE IN ADVANCE, not recoverable in action for use and occupation, 18. in case of mortgag-es, 89. the reserTation'must be clearly expressed to be, 18, 168. decisions on, 18, 169, 170. EENT-SECK, how created, 16. why so called, 16. effect of Quia Emptores as to, 14. how it differs from a rent-charge, 16. result of severance of rent-service from reversion, 16. rights of heir as to a, 56. as regards reversioners, 41. right of distress given by 4 Geo. II. o. 28, in cases of, 20. EENT-SERVICE, origin of, 6. distress incident to it of common right, 6. how it differs from a rent-seek, 14. copyhold rents are in their very nature, 6, 17. essentials of a, 7 — 11. to whom and how reserved, 11 — 14. improper reservations of, 12, 13. reservation on conveyance of a life estate, 52. reservation in case of doubt, 13. provisions of Conveyancing Act, 1881, as to, 14. result of severance of, from the reversion, 16. effect of statute Quia Emptores as to a, 14. apportionment of, 21 — 24. difference between rent-charge and, as regards apportionment, 25. demand of , when necessary, 164, 181 — 184. REPLEVIN, definitions of, 342, 344. at common law, 342, 343. by statute, 343. writ of capias in withernam in, 343. sheriff's deputies in, 350, 351. sale after notice of, 329, 330. powers of sheriffs taken away by County Courts Act, 1888, in, 344, 350, 351. exclusive jurisdiction to grant replevins, 344, note (/), 356, 359. extends to all wrongful takings of goods, 344, 345. right to replevy cannot be taken away, 344, note («). for what reple\'in lies, 345. to what it extends, 344, 345. time for making a, 249—251, 344, 345. in case of damage feasant, 347. extension of time under the Distress Act, 1888. .249— 251, 347. what may be replevied, 348. by whom replevin may be had, 348, 349. a property in the goods is necessary, 348. against whcjiii replevin may bo had, 349, 350. jurisdiction of registrar of Comity Coiu't in, 344, 350, 351. bond in, 313, 353, 354, 364, 370,^372. recovery of sum deposited in lieu of bond, 353, 373. 522 INDEX. U'E'PL'Eyi'N—mifhu/cd. luiliility of shcritt' for taking insufficient sureties in, 355, 356. liability of registrar in, 355, 356. objections to sufficiency of sureties, 356. County Court actions of replevin, 352, 353, 359 — 364, costs in, 352, 353, 363. rules of County Court in, 354—356, 360, 363, 365. fees payable in, 356, 357. search in Coimty Court for replevins, 254. meaning of "prosecuting with effect and without delay," 343, 344, 351, 357—359. High Court actions of , 351, 364—370. time for commencement of, 351, 364. indorsement of writ, 364. joinder of causes of action, 364, 365. damages in, 365, 366, 367, 371. defences, 366. payment into Court, 366. discontinuance of action, 366. nonsuit, 36, 367. execution, 367. writ of dc reton/o habcndo, 367. removal by certiorari into High Court, 368 — 370. stay of proceedings, 369. secvirity, 370. writ of recaption, 370, 371. writs of second deliverance and return irreplevisable, 371, 372. proceedings on the replevin bond, 372. defeasance of the bond, 372. liability of the sureties, 372, 373. recovery of the sum deposited in lieu of bond, 353, 373. right to begin in, 373. in case of second distress, 290, 291. as regards sale of a distress, 241, 249, 250. extension of time to fifteen days under the Distress Act, 1888, 249—251. as to coparceners, 45. as to tenants in common, 50. when mortgagee can decline to defend action of, 350. KEPLICATION, in actions of replevin, 366. REQUEST for appraisement under the Distress Act, 1888. .244, 245. for removal of goods to auction room, 244, 245. costs of removal, 256, 257. by tenant for extended time to replevy, 249 — 251. RESCUE, what it is, 311. requisites of, 311. what amounts to a, 312, 313. rescue in law, 312. before impounding, 313, 314. by whom to be made, 314. in case of abandonment, 314. in case of the abuse of a distress, 314, 315. INDEX. 523 'KESCJJ'E— continued. remedies for unlawful, 315 — 319. distinction between distress for rent and damage feasant as to, 316. treble damages for, 316, 317. on fraudulent removal, 202. of cattle from a pound, 317, 318. when no criminal offence, 315. KESERVATION", of rent-service, 7 — li. to whom and how reserved, 11 — 14. must be reserved on a sufficient conveyance, 7. must be to lessor himself and not to a stranger, 11, 12. must be conformable to the nature of the estate, 12. must be incident to the reversion, 14. improper reservations, 12, 13. in case of doubt, 13. of rent payable in advance, 17, 18. of a rent -charge, 15. of rent -seek, 16. EESTOEATION, order for restoration of live stock taken to be fed at a fair j)rice, 149. of railway rolling stock, 152. of frames used in woollen manufactories, 155. of property under Lodgers' Goods Protection Act, 1871.. 157. RESTRAINT, of a distress by injunction, 295, 296. of a distress between commoners, 64. on further proceedings in the wiuduig-up of companies, 104. of mortgagor who interferes with receiver, 81. RESTRICTIVE COVENANTS, in case of sale of a distress, 144, 145., 255, 256. landlord not bound to sell subject to, 145, 255. RETAINER, wrongful, of produce, on sale of distress under justice's warrant, 411, 412. RETURN of surplus proceeds of sale of a distress, 264, 265. RETURN IRREPLEVISABLE, writ of, 371, 372. REVENUE LAWS, replevin does not lie where the taking was under the, 346. REVERSION, severance of, how it affects right to distrain, 40, 41, 282. rent- service must be incident to the, 14. effect of Quia IJiiipiores, 14. severance of the, how it affects apportionment of rent-service, 23. landlord must have the, 40. assignment of the, by landloi-d, 40—43. merger of, takes away right of dibtross, 282. 524 INDEX. KEVEESIONERS, distress by, 40 — 45. as regards rent-seek, 41, 42. REVIVAL of right to distrain on payment, 285. RIGHT TO BEGIN", in replevin, 373. RIGHT TO DISTRAIN, how affected by chief clerk's certificate, 81. may be given by agreement between commoners, 299, 300. how taken away, 281—296. where no actual demise at a fixed rent, 29 — 32, 281. by expiration of the term, 281, 282. by determination of the lessor's interest, 282. where lessor parts with reversion, 282. by merger of the reversion, 282. by non-performance of a condition precedent, 282. by agreement not to distrain, 283, 284. acceptance of single instead of double rent, 284. by agreement for interest on rent, 284. by taking a security fur rent, 285, 286. restraint of a distress by injunction, 295, 296. second distress, 286—291. in case of insufficiency, 286 — 290. in case of replevin, 290, 291. by payment of the rent in arrear, 291. by tender of the rent in arrear, 291 — 295. to whom tender may be made, 292, 293. tender befoi'e and after impounding, 293, 294. as regards a surety under Mercantile Law Amendment Act, 1856., 286. ROYAL PALACE, distress within precincts of a, 84, note (?<) . ROYALTY, in nature of a rent, 5. RUINOUS, committal to prison where distress would be, 401. RULES, in County Court actions of replevin, 354 — 356, 360, 363, 365. SALE, power to sell animals impoimded for cost of food, 232, 233. of a distress, 248—256. landlord cannot sell goods to himself in a distress, 252. until, property in goods remains in tenant, 114, 248. how it afl^ects goods in custodid Icffis, 1I4. when compulsory, 249. no sale allowed if tenant replevies within five days, 249, 250. alteration to fifteen days by Distress Act, 1888. .249—251. time for removal of goods before, 251, 252. consent by tenant that goods on premises shall remain ■« ith dis- trainor, 253, 254. INDEX. 525 SALE — continued. search in County Court for replevins before, 25-1. meaning- of best price on, 254, 255. no particular order to be observed in sale, 255. in case of restrictive covenants, 255, 256. application of proceeds of, 264, 265. deduction of expenses of distress, 263. overplus to be left with sheriti, 263, 264, 331. of goods without appraisement, 330. measure of damages, 330. after notice of replevin, 329, 330. remedy for selling- a distress too soon, 328. when it takes away the right to replevy, 346. of distress nnder justice's warrant, 411, 412. a distress damage feasant cannot be sold, 307, 308. liabihty of auctioneer for goods in his hands during, 136. removal of goods to auction room for, 239. price realised at sale by auction is prima facie evidence of value, 255, 331. expenses of, in levying, 257. by appraiser, when irregular, 247, 330. of distress for taxes, 396. SATISFACTION, of arrears of rent by execution creditor, 142, 266 — 280. SCALE of fees imder Distress Act, 1888. .259, 260. SCHEDULE, of costs of a distress under 20/. . .257 — 259. over 20/... 259— 261. SCHOLAR, books of a, when privileged from distress, 150. SCOTCH COURTS, execution of warrant in, 412, 413. SEAL, corporations aggregate must make leases vmder, 85. order for distress warrant need not be under, 408, 409. tithes must be demised by an instrument under, 75. SEARCH, necessary in ejectment under Common Law Procedure Act, 1852, 190, 191. in County CoiU't for replevins, 254. SECOND DELIVERANCE, writ of, 371, 372. SECOND DISTRESS, in case of bankruptcy, 101, 102. where mistake in value, 173, 288, 290. in case of iusufdciency, 286, 287. whole amount of rent must be distrained for at once, 286. abandonment of first distress, 288. wlion wrongful, 288. wlitrc tbere has been a tender, 288. 526 INDEX. SECOND DISTRESS-ro«//»««7. is allowed where there has been a mistake in the value of the goods, 288, 289. ■where the tenant is guilty of misconduct, 290. in case of replevin, 290, 291. in case of trespassing animals, 30G. SECURITY, for costs, in County Court actions of replevin, 352, 353, 363. for rent, cfPect of taking, 285, 286. in case of companies, 111. discharge of sheriff under 8 Anne, c. 14. .278, 279. required in High Court actions of replevin, 351 — 353. for bailiff's certificates, 212, 213. SEISIN, of rent, 20. unity of, between coparceners, as regards apportionment, 47. SEIZURE, how made, 224—226. constructive, 225, 226. when second, is allowed, 173, 174, 286 ct seq. of fixtures, constructive, 123. acts siifficieut to constitute a, 224 — 226. of goods off the premises after expiration of the tenancy, 187. tortioiis, 335. SEPARATE attormnents in case of partners, 89. SEPARATION. [See also Severance.) of rent from the reversion, 16. SEQUESTRATORS, receivers appointed by Chancery have same powers as, 86. distress by, 86, SERVANT, tender of rent to a, effect of, 293. SERVICE, of inventory, 227. of summons for non-payment of i)Oor rates, 378. SERVICES, manual, in the nature of a rent, 2. corporal, rights of executors and administrators as to, 00. SET-OFF, effect of, in taking away right to distrain, 285. SEVERANCE, of fixtiu-es, liability of landlord on, 123. is an irregularity under 11 Geo. II. c. 19. .330. of rent from reversion, 16. of reversion, apportionment of rent-service on, 23. of reversion, takes away right to distrain, 40, 41. of estate by acts of joint tenants, 48, 49. INDEX. 527 SEWER RATES, deduction of, from rent, 176. costs on distress for, 259. SHAM RENTS, in attornment clauses, 96 — 98. SHEEP, when privileged from distress, 146, 147. remedy for wrongful distress of, 147, 321. SHERIFF, , .^ -, 11 time which elapses between dehvery by sherift and removal by purchaser, 272. goods in the hands of a, when privileged from distress, 141. liability of, for rent under 8 Anne, c. 14. .270, 271, 273—275. duties of, 275. notice to, by landlord, 269, 270, 276. discharge of, on landlord's taking a security for rent, 278, 2/9. deputies of, in replevin, 350, 351. powers of, now taken away in reiDlevin, 344, 350, 351. liability of, for taking insufficient sureties, 355. overplus of sale to be left in hands of, 264, 265. seizure within six months after expiration of tenancy by, 187. what sheriff can prove in mitigation of damages, 276. OTTT"p 'not "delivered" by shipbuilder liable to distress, 131, 132. SHRUBS, when privHeged from distress, 124. SIX CARPENTERS' CASE, rules laid down as to tender in, 293. SLEEPERS on a railway, when not distrainable for rent, 123. SOLICITOR, undertaking by, to pay rent in case of bankruptcy, 102. SPECIAL CASE, right to begin in replevin in a, 373. validity of poor rate cannot be tried by a, 390. SPECIAL CERTIFICATE, for bailiffs, 212. SPECIAL CONSTABLE, presence of, in case of fraudulent removal, 201. SPECIAL MATTER, ^ given in evidence under 11 Geo. II. c. 19. .332, 333. SPECIAL PROPERTY, 114, 306. SPECIALTY DEBT, rent is of a higher nature than a, 285. SPURS, can be rendered by way of rent, 2. 528 INDEX. STABLE, breaking open the outer door of a, 219. STAMP, on appraisement, 245. on an undertaking to indemnify broker is not required, 218. not required in a warrant of distress, 215. STANDINGS, in a factory, distress for, 5, 35. STAPLE, entiy by pulling out a, 219. STAPLE (Statute), distress by tenants by, 55. STATE, of the pound, 234. STATUTE, distress on possession limited by, 118, 119. goods privileged from distress by, 151 — 163. merchant and staple, distress in case of, 55. STATUTES OF LIMITATION, effect of, as regards landlord's right to distrain, 178 — 180. as regards annuities, 180. STAY OF PROCEEDINGS, on the winding up of companies, 10-1. in High Court actions of replevin, 369. on a replevin bond, 372. on tender of poor rates, 388, 389. in case of highway rates, 394. STEALING cattle from j)ound, 234. STOCK, must generally be impounded on the premises, 238. live, when privileged from distress, 147, 148. protection of railway rolling, from distress, 151 — 154, STRANGERS, goods of, cannot be taken under County Court execution, 278, 279. when exempted from distress, 114, 116. when liable to distress, 114. consent by landlord that stranger's goods shall be exempt from distress, 151. rent -service cannot be reserved to, 11. how altered by Conveyancing Act, 1881 .. 14. rescue cannot be made by, 314. cattle of, when liable to distress, 116. provisions as to fraudulent removal do not apjjly to goods of, 200. STRAW, when privileged from distress, 138, 139. STREET, distress cannot be taken in a common, 194. INDEX. 529 SUBJECT, competition between Crown ancT, as to distress, 83, 117, 118. SUCCEEDING, overseers, power of, on distress for poor rates, 374, 375. right of distress by succeeding landlord under 14 & 15 Vict. c. 25, s. 1,.44, 45, 186. SUTTEEANCE, tenancies on, distress for, 33. SUMMARY JURISDICTION (Court of), has power to detennine disputes with regard to live stock taken in to be fed at a fau- price, 149, 150. order for restoration of railway rolling stock by a, 152. order for restoration of frames used in woollen manufactories wrongfully seized by a, 155. appeal against an order of a, for recovery of double value of goods fi'audiilently removed, 206, 207. SUMMARY JURISDICTION ACT, 1879, does not apply to distress for poor rates, 375. highway rates, 393. in case of distress warrant by justices, 398 et seq. SUMMONS, for non-payment of a poor rate, 378. when it should be served before issuing distress warrant by justices, 407. in County Court actions of replevin, 360. SUNRISE, meaning of, 184. SUNSET, definition of, 184. tender must be made before, 294. demand of rent must not be made after, 1G4, 165. SURCHARGE of a common, distress for, 298. SURETIES, objection to sufficiency of, in replevin, 356. liability of sheriff for taking insufficient, 355. liability of registrar for takmg insufficient, 355. on a replevin bond, 343, 372, 373. whether entitled to right of distress, 286. SURPLUS, proceeds of a distress, 262 — 265. return of, 264, 265. to whom the overplus should be paid, 263. in case of bankruptcy, 93. SURRENDER, distress remains until there is a complete, 36. apportionment of rent-service as regards, 22. of the teim as regards reversioners, 43. 0. MM 530 INDEX. SURVIVOR, may distrain for arrears of rent accrued in lifetime of deceased joint tenant, 48. TAILOR, cloth delivered to a, to be made iip, not distrainable, 12G. TAXES, rules as to costs in distress for, 259. deduction of, from rent, 176. rig-hts of collector of, as against company's goods, 105. deduction of one year's rent on distress for, 277. distress for, 277. provisions of Taxes Management Act, 1880. .277, 395—398. distress by collector on refusal to pay, 395. collector may break open houses, 395. the levy, 395. time when distress must be kept, 395. appraisement of the distress, 396. sale of the distress, 396. overplus of the distress, 396. deduction of expenses, 396. fines upon constables and other officers, 396. where collectors pay over duties in advance, 396, 397. committal to prison of defaulter, 397. where defaulter has removed, 397. schedule of arrears, 397. fresh warrants, 397, 398. when a constable may be called in, 398. TEMPORARY, removal of fixtures does not destroy their exemption from distress, 121. exemption from distress of goods of temporary guests at an inn, 137. abandonment, 223. TENANCY AT WILL, distress in case of a, 32. TENANTS BY ELEGIT, distress by, 55. TENANTS BY STATUTE MERCHANT, distress by, 55. TENANTS BY STATUTE STAPLE, distress by, 55. TENANTS BY THE CURTESY, distress by, 54. TENANTS FOR LIFE, distress by, 52. TENANTS IN COMMON, may distrain severally, 50. when they may distrain jointly, 50. INDEX. 531 TENANTS IN COMMON— continued. in reijlevin they sever and avow separately, 50, 349. allotments under the Inclostxre Acts in case of, 51. distress, damage feasant by, 301. leases between, 51. may join in signing a distress warrant, 215. TENANTS IN DEMESNE, distress must be made whilst in possession of, 59. TENANTS IN DOWER, distress by, 54. as to annuities, 54. TENANTS IN FEE SIMPLE, distress by, 51. TENANTS IN FREEBENCH, distress by, 54. TENANTS IN TAIL, distress by, 52, after possibility of issue extinct, 52. TENANTS FUH AUTRE VIE, distress by, 52. executors and administrators of, 57. TENANTS UNDER EXECUTION, distress by, bo. TENDER, of rent, 182, 291—295. before seizure, 293. without expenses, 291. authority of bailiff to accex^t, 292. cannot be limited by landlord, 292. to whom made, 292, 293. to the landlord, 292. need not be to the broker, 292, 293. to an agent, 292. to a mere man in possession- or servant, insufficient, 292, 293. _ rules laid down in Six Carpenfcvs' Case as to, 293. tender before and after impounding, 293. action under 2 Will. & Mary, sess. 1, c. 5, s. 2. .294. after, landlord should keep the distress as a pledge, 294. when to be made, 294, 295. of what it must consist, 294. in case of damage feasant, 308. no distress allowed without a demand after a, 182. second distress after a, 288. of poor rates, 388. of highway rates, 394. in case of justices, 404, 405. TERM, expiration of, destroys light to distrain, 282. M M 2 532 INDEX. THEFT, from a pound, 23-1. THINGS IN ACTUAL USE, when exempted from distress damage feasant, 301, 302. are exempt from distress for rent, 139, 140. tilings conditionally pri^dleged may be absolutely privileged from their being in actual use, 140,146. THRESHING MACHINE, Tvhen privileged from distress, 140. TIME, for making a distress, 184 — 188. after expiration of tenancy, 185 — 188. cannot be made in the night-time, 184. must be made between sunrise and sunset, 184. meaning of sunrise and sunset, 184. when executoi's and administrators may distrain, 61. for sale of a distress under justice's warrant, 411, 412. apportionment of rent in respect of, 26 — 28. reasonable time allowed for removal of goods before sale, 252. for making a replevin, 249 — 251, 344, 345. in case of distress damage feasant, 347. extension of time under the Distress Act, 1888. .249 — 251. for sale of distress, must be stated in distress waiTant, 381. TIME OF GRACE, allowed on payment of rent, 167. TITHES, distress by owners of, 70. provisions of the various statutes for the commutation of tithes, 70— 76._ commutation, how effected, 71. difference between tithe rent-charge and ordinary rent-charge, charge on produce and not on inheritance, 72. right of entry where rent-charge in arrear, 72. provisions in case of Quakers, 73. summary remedy in respect of Lammas lands and commons in gross, 74. must be demised by deed, 75. deduction of, from rent, 176. costs of distress for, 259. TITLE, payment of rent not conclusive admission of, 176. as to Statutes of Limitations, 179. TITLE DEEDS, replevin of, 348. TITLE PARAJIOUNT, apportionment of rent-service by persons having, 22. exemption from distress by persons holding by, 115. in case of strangers, 116. TOLL, seizoxre of goods on non-payment of, 132. INDEX. 533 TOOLS, of trade, -when privileged, 140, 146, 150. exemption of, under Law of Distress Amendment Act, 1888.. 119, 140, 146, 151, 163, 188. TORTIOUS ACTS, of joint tenants, 48. corporations aggregate are liable for tlieii' agent's, 85, 86. of coparceners, 46. seizure, 335. TRADE, exemption from distress of goods delivered to a person in the way of his, 125—137. tools of, when privileged from distress, 140, 146, 150. exemption of, tinder Law of Distress Amendment Act, 1888.. 119, 140, 146, 151, 163, 188. meaning of public, 125, 126. as regards agents, 126. machinery, when deemed to be trade fixtiu'es, 122. TREBLE costs, now abolished, 316, 317. damages, on a rescue in case of fraudulent removal, 202. in case of a distress for rent, 316. TREES, when privileged from distress, 124. TRESPASS, when maintainable in distress damage feasant, 306. excessive distress, 334, 335. TRESPASSER AB INITIO, on abuse of distress damage feasant, 307, 308. entire value recoverable in case of a, 321, 322. as to part of the thing distrained, 322. how affected by the 11 Geo. II. c. 19. .326, 327. TROVER, as regards demand of goods, 332. payment to redeem goods from wrongful distress, 332. where auctioneer refuses to deliver up goods, 340. TRUSTEE, under bankruptcy, as to fraudulent removal, 200. where annuity is vested in a, for a term, 66. distress by a, 63. replevin of goods assigned to a, 348, 349. UNCERTAINTY, in amount of rent does not render attornment clause void, 98. UNCONDITIONAL, tender of rent should be, 294, 295. UNDERTAKING, to indemnify a bailiff does not require an agreement stamp, 218. 534 INDEX. UNDER-TENANTS, right of distress on goods of, 114, 116. right of assignee in banki-uptcy on sale of goods of, 103. whether, are lodgers, 158. beasts of, when privileged from distress, 147. UNRIPE, action for selling gi-owing crops when, 331. USE AND OCCUPATION, rent payable in advance is not recoverable in an action for, 18. VALUATION, after appraisement, 248. VALUE of goods, mode of calculatmg in excessive distress, 339, 340. price realised at auction prima facie emlence of, 255, 331. VESTURE, caimot constitute a rent, 3. VIEW, of goods after appraisement, 248. VOID AB IXITIO, where a distress is, 321, 322. damages recoverable, 322. how affected by the 11 Geo. II. c. 19. .326, 327. WAIVER, by distress, 189. of disclaimer, 190. by tenant of right of action for wrongful distress, 324. of forfeitiire, 188, 189. of action in case of agi-eements as to a disti'ess, 324. of notice to quit, 190. of execution, how it affects landlord's right to distrain, 143. WAREHOUSE, goods deposited in a, when privileged, 134, 136. WARRANT OF DISTRESS, for rent, 214—216. is not strictly necessaiy, 214. does not require a stamp, 215. who may join in signing a, 215. in case of fraudulent removal, 203. for poor rates, 379 — 385. for highway rates, 393. as to justice's, 398, 399, 402—404, 407, 408. on non-payment of taxes, 395 — 398, 405. WEARING APPAREL, when privileged from distress, 119, 140. exemption of, on sale of a distress under justice's warrant, 400. under law of Distress Amendment Act, 1888. ,119, 140, 146, 163, 188. INDEX. 535 WEAVER, materials delivered to a, when privileged from distress, 126. horse sent with yarn to a, when privileged from distress, 127. WEEKLY TENANCIES, distress in case of, 32. holding over after notice to quit, 39. landlord's claim for rent in case of, 267. WESTMINSTER II. (Statute of), as to bailiffs under the, 207, notes (r) and (s). WHARFINGERS, goods in warehouse of, when distrainable, 134. WINDING UP OF COMPANIES, distress where premises retained for convenience of, 105 — 107, 109. WINDOW, entry through, to distrain, 220, 221. when pri^'iIeged from distress, 120. WITHDRAWAL, of a distress, 289. WITNESS, when necessary in service of notice of inventory, 227. WOOLLEN MANUFACTORIES, exemption from distress of frames used in, 154, 155. order for restoration of the frames, 155. WORKING a distress whilst in the pound, 235, 236. WRIT, indorsement of, in replevin, 364. in wTongful distress, 324, 325. of '' de retorno habendo,^^ 371. of ^^ capias in withernam" 343, 367, 368. of recaption, 370. of second deliverance, 371, 372. of retm-n iiTcplevisable, 371, 372. WRONGFUL DISTRESS, forms of action in, 320, 324, 325. distress altogether wrongful, 320, 321. where distress is void ab initio, 321, 322. remedies for, 321. damages for, what recoverable, 321. remedy where distress taken on the highway, 322. where no rent is owing, 323. recovery of double value under 2 Will. & Mary, sess. 1, c. 5 . . 323. what is a " taking" sufficient to maintain an action, 323. in what cases tenant waives his right of action, 324. against whom action should be brought, 324. alternative remedies, 324. form of indorsement of writ, 324, 325. form of action against landlord who sells a distress, 325. summary remedy within the metroiiolitan police district for, 325, 326. 536 INDEX. 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