Edward Christian Sir William Blackstone.

Commentaries on the laws of England: in four books; with an ..., Volume 2 online

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dfil law ; for anciently, in the feudal law, the
ae^leet to attend at the lord's courts, or not
doiB^ feudal service, was a forfeiture of the
ssbOe ; but these feudal forfeitures were after-
waids tamed into distresses according to the
pigBOtary method of the civil law, that is, the
land let ont to the tenant is hypothecated, or
as a pledge in his hands, to answer the rent
agreed to be paid to the landlord, and the
wkole profits arising from the land are liable
to the md's seizure for the payment and sa-
tisfiutiOD of iL GUb. Dis. 2. Gilb. Rents, 3.
Bacon on Gov. 77. Vigillius, 257. 271. 326.
CR»p.InL9. 2 New. R. 224. The distress
eoold not at common law, before the stat. 2 W.
tL M. c. 5. be sold, Ifoi could only be impound-
ed and detained, in order to induce the tenant
to peiibna the feodal service.* Distresses,
IherefNe, were at common law only allowed
when the relation of landlord and tenant sub>
sisted, and when consequently there remained
feodal service to be pertormed ; and hence the
Meessily at the present da^, that the landlord
distraintnc should, at the time of the distress,
bs entitled to the legal reversion ; and hence

• 8ee 2 R. S. 500, deteiling the mode of
fioeeedinc on distress for rent. By that act
< is Drovided (^ 1), that within 6 months afler
ths determination of any lease for life, years,
or St will, any one to whom rent is due on such
jane, msy distrain either the soods remain-
ing on the premiaea, or such as have been re-
Mved, in the same way as if the lease had
■St ended. By 1 B. 8. 747, ^ 18, it is enact-
ed, Ait when unresrtain aarviMt, or eextain

Vol. II. 4

the consequence, that if a landlord, after rent
has become due and before payment, conveys
his legal estste to another, be cannot distrain.
Gilb. Action Debt, 411. Bro. Debt, pi. 93.
Vaughan, 40. Bac. Ab. Distress, A. And
for the same reason, it is necessary to aver in
an avowry and cognizance, that at the time of
the distress the tenancy subsisted. The com-
mon law was altered as far as regards tenants
holding over, by the 8 Ann. c. 14. which pro-
vided, that if a person retain possession ot the
estate after the expiration of his tenancy, the
landlord, if his interest continue, may distrain
within six months. Before this statute it was
usual, and still may be expedient, to provide
that the last half year's rent shall be paid at a
day prior to the determination of the lease, so
as to enable the landlord to distrain before the
removal of the tenant. Co. Lit. 47. b. If by
agreement or custom the tenant has an away
going crop, and right to hold over to clear the
same, the landlord may, during such excres-
cence of the term, distrain at common law.
1 Hen. Bla. 8. So the 1 1 Geo. II. c. 19. s. 18.
enables a landlord to distrain for double rent,
if a tenant do no? deliver up possession after
the expiration of his own notice to quit, by
which he incurs double rent so long as he
holds over. When a lessor has not the legal
estate or a reversion, he should reserve a pow-
er to distrain, which will entitle him to do so.
Co. Lit. 47. a. 5 Co. 3. But though the prin-
cipal object of a distress was to compel the per-
formance of feudal services, and consequent-
ly if rent be reserved on a letting merely of
personal property, no distress can be taken. 5
Co. 17. 3 Wils. 27. Yet a distress may be

rent reserved out of any lands or tenements,
shall not be paid or rendered when due, the
person entitled thereto ma^ distrain for the
same. Does not this authorize a distress even
where there is no reversion in the owner of
the rent 7 No distress for rent can be made
unless the warrant to distrain be accompanied
bj an affidavit of the amount due, and of the
time when it became due. 2 R. 6. 501, ^ S.

Digitized by



damage-feasant, that is, doing damage, or trespassing, upon his land.
The former intended for the benefit of landlords, to prevent tenants from
secreting or withdrawing their effects to his prejudice ; the latter arising
from the necessity of the thing itself, as it might otherwise be impossible
at a future time to ascertain, whose catde they were that committed the
trespass or damage.

A8 the law of distresses is a point of great use and consequence, I shall
consider it with some minuteness : by inquiring, first, for what injuries a
distress may be taken ; secondly, what things may be distrained ; and,
thirdly, the manner of taking, disposing of, and avoiding distresses.

1 . And, first, it is necessary to premise, that a distress (j), duttnetto, is
the taking a personal chattel out of the possession of the wrongdoer into
the custody of the party injured, to procure a satisfaction for the wrong
committed. 1. The most usual injury, for which a distress may be taken,
is that of non-payment of rent. It was observed in the former book (A),
that distresses were incident by the common law to every rent-service, and
by particular reservation to rent-charges also ; but not to rent-secky till the
statute 4 Geo. II. c. 28. extended the same remedy to all rents alike, and
thereby in efiect abolished all material distinction between them.
[ *7 j So that now we may lay it down as an universal principle, *that
a distress may be taken for any kind of rent in arrear ; the detain-
ing whereof beyond the day of payment is an injury to him that is enti-
tled to receive it (9). 2. For neglecting to do suit to the lord's court (/),
or other certain personal service (m), the lord may distrain, of common
right. 3. For amercements in a court-leet a distress may be had of com-
mon right ; but not for amercements in a court-baron, without a special
prescription to warrant it(n). 4. Another injury, for which distresses
may be taken, is where a man finds beasts of a stranger wandering in his
grounds, damage-feasant ; that is, doing him hurt or damage, by treading
down his grass, or the like ; in which case the owner of the soil may dis-
train them, till satisfaction be made him for the injury he has thereby sus-

ij) The thing: itself taken by this process^ an well (/) Bro. Ahr. tit. di$tr€i»t 1& •

M the process itself, is in our law>books very fro- (m) Co. Litt. 47.

quontly called a distress. (n) Brownl. 96.

(k) Book II ch. 3.

made for rent of a ready furnished house or does not eontain words of immediate demise,

]odgini(, because it is then considered that the no distress can be made, unless from a previ-

nnt istuet out of the principal, the real pro- ous payment of rent or other circumstance, a

perty demised. 2 New. Rpp. 224. tenancy from year to year can he inferred, and

Accepting a note of hand, and giving a re> the only remedy is by action for use and-occa-

ceipt for the rent, does not. till payment, pre- nation. 2 Taunt. 148. 5 B. & A. 322. 13

dude the landlord from di.strainmg; and so if East, 19. So as lord Coke quaintly says,

the landlord accept a bond : but a judgment, (Co. Lit. 96. a.) it is a maxim in law, that no

obtained on either of such instruments, wotild distress can be taken for any services that are

preclude the right of distress.* See Bull. N. not put into ccrtHinty. nor can be reduced to

P. 182. An agreement to take interest on rent any certainty, for id certum eat quod certum

in arrear, does not take away the right of dis- reddi potest, bat yet in some cases there may

trees. 2 Chit. R. 245. Where there are rente be a certainty in uncertainty. Therefore if a

for which the party cannot distrain, although man hold land, paying so much per acre, al-

he may have an assize, yet remedy may be though in the terms of the demise the number

had in equity. Per Com'vns, B. Exch. Trin. of acres he not fixed, the lord may distrain.

5 & 6 Geo. IL 1 Selw. Nl. P. 6. ed. 673. Vin. Ab. Distress, E. See form of avowry, 3

To entitle a person to distrain for non-pay- Chitty on PI. 4th edit. 1051. But where an

Bent of money, it must be due under a demise^ estate has been let without in any way fixing the

and for rent^ed and certain in its nature ; amount of rent, the only remedy is by action,
and therefore, if a person be let into possee- (9) See, however, 2 book, p. 42. and Co.

lion under an agreement for a lease which Lit. 162, b. n. 6.

* Sm aooordingly 8 R. S. 500, ^^

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lamed tlO). 5. Laartly, for seyeral duties and penalties inflicted by special
Acts of paiUament (as for assessments made by commissioners of sew-
ers (o), or for the relief of the poor) (p), remedy by distress and sale is
given ; for the particulars of which we must have recourse to the statutes
themselves : remarking only, that such distress {q) are partly analogous
10 the ancient distress at common law, as being repleviable and the like ;
but more resembling the common law process of execution, by seizing and
selling the goods of the debtor under a writ o( fieri facuis, of which here-
after. .. ^-^
2. Secondly ; as to the things which may be distrained, or taken iirast
iress (1 1), we may lay it down as a general rule, that all chattels pesson-
si are liable to be distrained, unless particularly protected or exempted.
Instead therefore of mentioning what things are distrainable, it will be
easier to recount those which are not so, with the reason of their particu-
lar exemptions (r). And, 1. As every thing which is distrained is pre-
sumed to be the property of the wrongdoer, it will follow that ^uch things
wherein no man can have an absolute and valuable property (as dogs.

(•) Stat. 7 Ann. o. 10.
if) Sut. 41 Eliz. c. S.

(q) 1 Burr. 530.
(r) Co.Litt.47.

nO) S«e Uw of New. York. 2 R. S. 517.

(11) Besides the rules in tbe text, it is a
■sxim of Uw. that goodw in tfu euMtody of the
lfl» csnnor be distraioed ; thus goods distrain-
ed, damage -feasant, cannot be distrained, Co.
Liu. 47. a. ; so goods taken in execution,
WiBes, 131 ; bat toe goods so taken must be
maored from the premises within a reason-
lUe time, or thej will not be protected, 1
Price, 277. 1 M. & 8. 711 : however, grow-
ing com, sold under a writ of fi. fa., cannot be
distrained, unless the purchaser, allow it to re-
maia uncut an unreasonable time after it is
ripe. 2 B. & B. 362. 5 Moore, 97. S. C. ; but
goods, taken under a Toid outlawry, are liable
to distress. 7 T. R- 259. For the protpction
of landlords, by the 8 Ann. c. 14. s. 1. no goods
taken in execution upon any premises demised,
«an be removed until rent,* not exceeding one
year's arrear, be paid. Under this act the nhe-
riff is bound to satisfy the rent in the first in-
stance. 4 Moore, 473. In cases to which the
alamie applies, the landlord is entitled to be
^d his wnole rent, without deducting pound-
age. 1 Stra. 643 ; rent only due at the time of
' the^evy can be obtained under the act, 1 M.
A S. 245. 1 Price, 274 ; but forehand rent, or
rant stipulated to be paid in advance, may be
obtained, 7 Price, 690 ; so rent that falls due
«a the dsj of the levy, Tidd. Prac. 8th edit.
J054. Aner the landlord has had one year's
rent paid him, he is not entitled to another up-
«a a second execution, 2 Stra. 1024. 2 B. dc
B. 362. 5 Moore, 97. S. C, unless, as we
bave just seen, the goods be not removed
withio a reasonable time. The ground land-
lord is not within the act, where there is an
«xecution against the under lessee. 2 Stra.
767. If the sheriff remove the goods without
payment of the rent, and after notice and a
lennal demand of the rent, an action on the
«••• fies against him. Yin. Ab. Dist. c. 3.

* See aeeofdiaflij in Now-York, 1 R. 8.

Stra. 97. 3 B. dc A. 440. But no specific
and formal notice is necessary. 3 B. dc A.
645. 4 Moore, 473. 2 B. dt B. 67. S. C. The
action lies, though part only of the goods be
removed, 1 Moore, 473. 2 B. dt B. 67. S. C. ;
but the landlord's consenting to the removal
waives his remedy. 3 Camp. 24. An execu-
tor or administrator, 1 Stra. 212. or a trustee
of an outstanding satisfied term to attend the
inheritance, may sue. 4 Moore, 473. 2 B. dc
B. 67. S. C. Instead of an action, the landlord
may move the court out of which the execu-
tion issued, that he may be paid what is due
to him out of the money levied, and in the she-
rifPs hands. Gas. T«m. Hardw. 255. 2 Wils.
140; and the court will grant the motion,
though the sheriff had no notice of the rent
due till after the removal. 3 B. d& A. 440 ;
and see further on this point, Tidd's Prac. 8th
edit. 1053, 4, 5.

The recent bankrupt act provides, that iu
case of bankruptcy, no distress made after act
of bankruptcy shall lie available for more than
a year's rent, but the landlord may prove for
the excess. 1 Geo. IV. e. 16. sect. 74. and see
ante, 2 book, 473. t

For the protection of landlords, by the 56
Oeo. III. c. 50, no sheriff or other oflioer shall
carry off, or sell or dispose of, for the purpose
of being carried off from any lands, any straw,
chaff, or turnips, in any case, nor any hay or
other produce, which, according to any cove-
nant or written agreeihent, ought not to be so
carried off, provided notice be given \o the
sheriff of the existence of such covenant ; but
bj 3d section, the sheriff may sell, on condi-
tion of such crops being consumed on the land.
The 6lh section provides, that landlords shall
not distrain for rent on the purchaser of any
such crops, sold according to 3d section ; nor
on articles or cattle, dec. pmployed for the
purpose of consuming such crops.

t See 2 R. S. 39. ^ 28. corremndtngpra-
▼ition imdar the iasolTont Uwt ot No*v-York.

Digitized by




[ *8 ] cats, rabbits, and *all animalB fer^ wOwrd) cannot be dittnin*
ed. Yet if deer (which vceferm naterc) are kept in a private in-
closure for the purpose of sale or profit, this so far changes their nature,
by reducing them to a kind of stock or merchandize, that they may be
distrained for rent is), 2. Whatever is in the personal use or occupation
of any man, is for the time privileged and protected from any distress ; as
an axe with which a man is cutting wood, or a horse while a man is
riding him. But horses, drawing a cart, may (cart and all) be distrained
for rent-arrere ; and also, if a horse, though a man be riding him, be taken
damage-feasant^ or trespassing in anothe^s grounds, the horse (notwith-
standing his rider) may be distrained and led away to the pound (13).
Valuable things in the way of trade shall not be liable to distress. As a
horse standing in a smith shop to be shoed, or in a common inn ; or cloth
at a tailor's house ; or com sent to a mill or a market. For all these are
protected and privileged for the benefit of trade ; and are supposed in com-
mon presumption not to belong to the owner of the house, but to his cus-
tomer (14). But, generally speaking, whatever goods and chattels the
landlord finds upon the premises, whether they in fact belong to the tenant
or a stranger, are distrainable by him for rent : for otherwise a door would
be open to infinite frauds upon the landlord ; and the stranger has his

(«) Daria t. PowL C. B. BU. 11 Om. //. (»). (t) 1 Sid. 440.

(12) S«e this ease fully reportedp Willes
Rep. 46.

(13) But this doctrine is contrary to Saver
Rep. 139. 2Keb.596. Cro. Elix. 596. Co.
Litt. 47. a. Rol. Ab. Distress, A. pi. 4 ; and
was expressly overruled in 6 Term R. 138.
on the ground that the distraining a horse as
damage-feasant, whilst auT person is riding
him, woold perpetually lead to a breach of the
peace. And it has been held, that nets or fer-
rets cannot be taken damage-feasant in a war-
ren, if they are in the hands of the person
using them. Harg. Co. Litt. note 13. Cro.
Elis. 550. So a loom cannot be distrained
while in the hands of the weaver, Willes,
517: nor wearing apparel, if in actual use;
but if put off, though only for the purpose of
repose, it is liable to be distrained. 1 Esp. Rep.
206. Peake*s Rep. 36. S. C.

(14) As to this exception in favour of trade,
«ee Gilb. Dis. by Hunt, 39 ; so cattle and

|oods of a guest at an inn are not distrainable
_or rent, but a chariot or horses sUnding at
lirery are not exempt. 2 Burr. 1498. Mr. Sergt.
Williams, in 2 Saund. 290. n. 7. suggests, that
it should seem that at this dav a court of law
would be of opinion, that cattle belonging to a
drover being put into ground with the consent
of the occupier, to graze only one night on
their way to a fair or market, are not liable to
the distress of the landlord for rent ; and lord
Nottingham intimated the same opinion in 2
Vein. 130 ; and Mr. Christian, in his edition,
has the following note of a decision to the
same effect : " Cattle driven to a disUnt mar-
ket, and put into land to rest for one night,
oannot be distrained for rent by the owner of
the land, such protection being absolutely for
the public interest," Tate v. Gleed, C. P.
HIL 24 Geo. Ui. GUb. Dis. by Hum 47. It
WW befoi* held, tint oattU going to London,


and put into a close with the consent of tiie
landlord and leave of the tenant, to craze for
a night, micht be distrained by the landlord
for rent, 3 Lev. 260. 2 Vent. 50. 2 Lutw.
1161 ; but the owner of the cattle was after-
wards relieved in equihf on the ground of fran-
dulent connivance andconcealment of the de-
mand for rent by the landlord, and he was de-
creed to pay all costs boUi of law and equity.
2 Vem. 120. Prec. Ch. 7. Gilb. Dis. hy
Hunt, 47. As courts of law now take notice
of fraud as well as courts of eouity, when it
can be fully proved, there would now be the
same result at law.

Goods of a principal in the hands of a factor
are privileged from distress for rent due from
such factor to his landlord, on the ground Aat
the rule of public convenience, out of waich
the privilege arises, is within the exception of
a landlord's general right to distrain, and
therefore that such coods are protected for the
benefit of trade. 6 Moore Rep. 243. 3 B. dc
B. 75. S. C. So ffooda landed at a wharf and
consigned to a broker, as agent of the consign-
or, for sale, and placed by the broker in tlie
wharfinger's warenouse for safe custody until
an opportunity for selling them sh6uld occur,
are not distrainable for rent due in respect of
the wharf and warehouse, as they were brought
to the wharf in the course of trade. 1 Bing.
283. So goods carried to be weighed, even
at a private beam, if in the way of trade, are
exempt ; so is a horse that has carried com to
a mill to be ground, and during the grinding
of the com is tied to the mill-door. Cro. Elis.
549. 596. Goods in a public fair are exempt
from distress, unless for toll due from the
owner. 2 Lutw. 1380. Goods in possession
of a carrier are also exempt, and tnis though
the eutier be not a poblio one. 1 Saik. 249.

Digitized by



ramedy over by wcdaa on the case against the tenant, if by the tenant's
default the chattels are distrained, so that he cannot render them when
called upon (15). With regard to a stranger's beasts which are found on
the tenant's land, the following distinctions are however taken. If they
are pat in by consent of the owner of the beasts, they are distrainable
immediately afterwards for rent-arrere by the landlord (v). So also if the
stranger's cattle break the fences, and commit a trespass by coming on
the luid, they are distrainable immediately by the lessor for his tenant's
rent, as a punishment to the owner of the beasts for the wrong com-
mitted through his negligence (u). But if the lands were not *suffi- [ *9 ]
ciently fenced so as to keep out cattle, the landlord cannot distrain
them, till they have been levant and couchant (leva/Ues et cuharUes) on the
land ; that is, have been long enough there to have lain down and rose
up to feed ; which in general is held to be one night at least (16) : and
then the law presumes, that the owner may have notice whether his cat*
tie have strayed, and it is his own negligence not to have taken them
away. Yet, if the lessor of his tenant were bound to repair the fences
and did not, and thereby the cattle escaped into their grounds, without the
negligence or default of the owner ; in this case, though the cattle may
have been ievtnU and couchant, yet they are not distrainable for rent, till
actual notice is given to the owner that they are there, and he neglects to
remove them (to) : for the law will not suffer the landlord to take advan-
tage of his own or his tenant's wrong (71). 3. There are also other
thmgs privileged by the ancient common law ; as a man's tools and uten-
sils of his trade, the axe of a carpenter, the books of a scholar, and the
like : which are said to be privileged for the sake of the public, because
the taking them away would disable the owner from serving the common-

(V) Cro. Ells. 549.
(•) Co. Lltt. 47.

(w) Latw. 1580.

(15) As if koiMt or cattle are sent to agist,
ihej m»j be immediately distrained by the
landUml for rent in anrear, and the owner must
seek his remedy bv action against the farmer ;
dM principle of inis rule extends to public
li^gpcy stables, to which, if horses and carriages
are sent to stand, it is determined that they
are distrainable by the landlord, as if they
were in any public place, 3 Burr. 1498 ; so up-
on the same principle the goods of lod^rs, or
sny other person, on the premises, ars liable to
be distrained : and to exempt goods from dis-
tress oa the ground of their bein^ in an inn,
they most be within the rery precmcts of the
IBB, and not on other premises at a distance
bKloogiBf to it,.Barnes, 472 ; and eren within
th« inn itself the exemption does not extend
le a person dwelUsg therein, as a tenant, ra-
tker than a guest. 1 Bla. Rep. 484.

As to the remedy over b]r an under-tenant
or lodger, see the eases cited in 3 Bar. dc
Crss. 789, in which it was held, that where
the tenant of premises had underlet a part by
deed, and the original landlord distrained for
mat upon the under-tenant, the latter could
Bot support assofflpsit against his immediate
lessor, npoB aa implied proodse to tademnify
kim agaiast the nat payable to the superior

(16) Lerant and couchant in this sense
means, that the cattle must be lying down and
rising up on the premises for a night and m
day, without pureuit made by the owner of
them. Gilb. Dis. by Hunt, 3d edit. 47.

(17) In the case of Poole t. Lon^uevill, 2
Sauna. 289. the contrary was determined, but
that case was overruled in 2 Lutw. 1580. and
the result of the cases seems to be, that if a
stranger's beasts escape into another's Isad,
by default of the owner of the beasts, as by
breaking the fences, otherwise sufficient, they
may be distrained for rent immediately, with-
out being Uv€uU and eouehant ; but that if they
escape there by default of the tenant of the
land, or for want of his keeping a sufficient
fence, then they cannot be distrained for rent
or service of any kind till they have been le-
vant and couchant, nor afterwards by a land-
lord for rent on a lease, unless the owner of
the beasts neglect or refuse, after aetnal notice,
to remove them within a reasonable time;
but it is said, that such notice is not necessary
wherejthe distress is by the lord of the fee, or
by the gnntee of a rent-charge. 2 Lutw. 1673.
Co. Lltt. 47. b. n. 3. Oilb. Dis. by Hunt, 3d
edit. 45. 2 Saund. 290. n. 7. 285. a. 4. See
farther, Yin. Ab. Fences.

Digitized by




wealth in his station (18). So, beasts of the plough (19), aoeria earueaef
and sheep, are privileged from distresses, at common law (x) ; while dead
goods, or other sort of beasts, which Bracton calls eatdHa oiiosa, may be dis-
trained. But as beasts of the pl6ugh may be taken in execution for debt,
so they may be for distress by statute, which partake of the nature of
executions (y). And perhaps the true reason why these and the tools of
a' man's trade were privileged at the common law, was because the dis-
tress was then merely intended to compel the payment of the rent, and
not as a satisfaction for its iion-pa3rment : and therefore, to deprive the par-
ty of the instruments and means of paying it, would counteract the very
end of the distress (z). 6. Nothing shall be distrained for rent, which
mnj not be rendered again in as good plight as when .it was distrained :

for which reason milk, fruit, and the like, cannot be distrained, a
[ *10 ] distress at ^common law being only in the nature of pledge or

security, to be restored in the same plight when the debt is paid.
So, anciently, sheaves or shocks of com could not be distrained, because

Online LibraryEdward Christian Sir William BlackstoneCommentaries on the laws of England: in four books; with an ..., Volume 2 → online text (page 5 of 135)