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to remove them within a reasonable time, until the expira-
tion of which they cannot lawfully be distrained for damage
feasant (s). What is a reasonable time is a question for the
jury with reference to all the surrounding circumstances (s).

In Singleton v. Williamson, the plaintiff was owner of a
close A., and the defendant was owner of closes B. and C.
Between A. and B. there was a fence which, as against the
owner of A., the owner of B. was bound to keep in repair,
but which he had neglected to do. Between B. and
C. * there was a sufficient fence. The cattle of the [*451]
plaintiff strayed from A. through a gap into B., and

(s) Tate V. Gleed, 2 Wms. Saund. note (301) ; Kemp r. Crawes, 2 Lutw.
290, n. (/). 1577; 1 Ld. Raym. 168; Bullen, 103.

Q) Co. Lit. 161 a. (y) Poole v. Lonoueville, 2 Saund.

(«) Clement v. Milner, 3 Esp. 95. 289; Smith L. & T. 204 (2nd ed.).

(x) Gilb. Distr. 45; Co. Lit. 47 a, (z) Goodwin v. Clievcley, 4 PL &

N. 631 ; 28 L. J., Ex. 298.


*451 DISTRESS FOR RENT. [Cii. XI. S. 9.

there breaking down the fence between B. and C, were
distrained by the defendant as, he alleged, damage feasant in
C. It was held, in trover to recover the cattle, that the de-
fendant had no right to distrain the cattle, as the first wrong-
ful act had been committed by himself in leaving the fence
between B. and A. insufficiently repaired, the natural result
of which wrongful act was the damage complained of ; and
that the jury were properly directed that the state of the
fence between B. and C, and whether or not the cattle were
damage feasant, was immaterial (a).

It may be added here that by 11 Geo. 2, c. 19, s. 8, every
landlord may take and seize, as a distress for arrears of rent,
any cattle or stock of his tenant feeding or depasturing upon
anil ^ommo7i appendant or appurtenant, or any ways belong-
ing to any part of the premises demised ; and that by 56
Geo. 3, c. 50, s. 6, cattle feeding on crops sold under the
provisions of that act cannot be distrained (6).

(j) The Tools of Trade.

Tools of trade. — The tools and imijlements of a man's
trade are absolutely privileged from distress for rent, if they
be in actual use at the time ((^-'). If they be not in actual
use, they are only privileged, in case there be no other dis-
tress upon the premises (jT). But the distrainer is a tres-
passer ab initio only as to those particular goods which were
not distrainable ; the distress may be valid as to the residue,
and a satisfaction pro tanto of the rent (e). Ledgers, day-
books, vouchers and other business papers seem not to be
distrainable. In one case the plaintiff recovered 40s. dam-
ages in trespass against the landlord and his l)roker for an
illegal seizure thereof undiir a distress (/).

Books. — In commenting upon the dictum ol: I^ord Coke,
that the books of a scholar would be privileged from distress,

(a) Sin^tlf'ton v. Williamson, 7 II. (d) Nargett v. Nias, 1 E. & E. 430;

& N. 410; :n L. J., Ex. 17. 28 L. J., Q. B. 148.

(/») See this act, i<ost, Appendix A. (e) Harvey v. Pocock, 11 M. & W.

(c) Simpson v. Hartopp, Willes, 740; Davies j). Aston, 1 C. B. 746; 8

f)12; 1 Smith L. C. 489 (7th ed.) ; D. & L. 188.

Gorton v. Faulkner, 4 T. R. 505. (/) Gauntlett v. King, 3 C. 1?., X.

S. 59.



Mr. Smith expresses an opinion that this exemption would
include a lawyer's books also (jf).

Threshing machine. — A threshing machine, which is not a
fixture, is liable to a distress, unless in actual use at the time,
or there be other sufficient distress (A). If a man has two
mill-stones, and one only is in use, and the other lies by not
used, it may be distrained for rent (i).

* (k) Agisted Stock} [*452]

Conditional exemption. — If the Agricultural Holdings Act
applies (/c), agisted stock, that is stock taken in by the ten-
ant to be fed, in some parts of the country called " tacks,", is
conditionally exempt ivom distress under some circumstances.
For it is provided by s. 45 of that act that '•' Where live stock
[i.e. by s. 61 'any animal capable of being distrained' (Z)]
belonging to another person has been taken in by the tenant
at a fair price, such stock shall not be distrained where there
is other sufficient distress to be found." As to the " fair
price" it has been held not to be necessary that there should
be a price in money, and that an agreement " milk for meat "
as it is termed, i.e. that the tenant should keep for his own
use and by way of payment, the milk of agisted cows, is
within the section (wi).

Limit on amount recoverable. — The section goes on to pro-
vide that if the live stock be distrained by reason of other
sufficient distress not being found, " there shall not be re-
covered by such distress a sum exceeding the amount of the
price so agreed to be paid for the feeding, or if any part of
such price has been paid, exceeding the amount remaining

{(j) Smith L. & T. 205 (2iid ed.). pi. 6, cited in Simpson v. Ilartopp,

(Ji) Fenton v. Logan, Bing. (576. ■uhi supra.
As to absolute exemption, if on agri- (t) Sect. 5, ante, 430.

cultural holding, see sub-s. (/<), ante, (/) See Sub-s. (U), anfe, 439.

448. (»i) London & Yorkshire Bank r.

(?) Year Book, Easter T. 14 H. 8, Belton : Ross and Smith, Claimants,

L. R., 15 Q. B. D. 457.

J Agisted stock. — Cattle taken under exclusive right to feed the grass
are not exempt by the Agricultural Holdings Act. Masters v. Green, 20 Q.
B. D. 807.

[n Pennsylvania cattle received to be pastured are exempt from distress.
Cadwahuier r. Tindall, 20 Pa. St. 422.


*453 DISTRESS FOR RENT. [Ch. XI. S. 10.

Power of owner to redeem. — Moreover the owner of the
stock, who at common law would he subject to the common
loss of third persons, has a special statutory privilege, it being
further enacted that " it shall be lawful for him to redeem the
stock at any time before it is sold (71) by paying to the dis-
trainer a sum equal to such price as aforesaid," and that "any
payment so made to the distrainer shall be in full discharge
as against the tenant of the like amount which would be
otherwise due from the owner of the stock to the tenant in
respect of the price of the feeding." A proviso is added that
so long as any portion of the stock shall remain on the hold-
ing, the right to distrain such portion shall continue to the
full extent of the price agreed to be paid (or of the part, if
any, remaining unpaid), for the feeding of the whole.

Sect. 10. — Proceedings in Distress.

(a) When to be made.
Must be betw^een sunrise and sunset. — A distress for rent
cannot be made after sunset and before sunrise, however

light it may be (o) ^ — because the tenant would not
[*453] have * any notice to make a tender of his rent, which

possibly he might do in order to prevent the dis-
tress ( 7^). It seems doubtful whether, for the purposes of a
distress, sunrise commences with the first beams of the sun
above the horizon, or when the middle of the sun is upon
the horizon, or when the sun has completely emerged ; "• per-
sons who distrain should bear in mind that a distress is to
be made in the daytime, and they ought not to go so near
the limits as to raise any doubt on the subject " (</). An
almanack is not evidence of the time of sunrise or sunset on
a particular day, nor will the court take judicial notice of

(n) As to time of sale, sec Sect. 10, ( ;,) Gilb. Distr. 50 ; Co. Lit. 142 a ;

sub-s. (/i), ]msl. Aldfiihiir}-!! v. IVaple, C. & P. 212.

(o) 'ruttoii V. Darke and Nixon v. (^y) Tutton v. Darke and Nixon v.

Freeman, 5 II. & N. 047 ; Keen i;. Freeman, supra.
I'riest, 4 II. & N. 240, Watson, B. ;
Smith L. &T. 219 (2nd ed.).

' Russell V. Buckley, 25 N. B. 204.


such time (z-)- It was ruled in one case, where rent being
due to the defendant from the plaintiff, who was about to
remove her goods, the defendant entered the house after
sunset, and for some hours prevented her from so doing, and
locked some of the doors, that the plaintiff was entitled to a
verdict, but only for the actual damage (s), but it seems that
the full value for the goods distrained ought to have been
given (^).

Must not be till after rent-day. — A distress cannot be made
the same day on which the rent becomes due, for it is not in
arrear until the next day (w).^ The custom of a place or an

(r) 5 H. & N. 647, 649, per Pollock, N. S. 280 ; Attack v. Braniwell, 3 B.
C. B. ; Collier v. Nokes, 2 C. & K. & S. 520 ; 32 L. J., Q. B. 146.
1013. («) Duppa V. Mayo, 1 Saund. 287 ;

(s) Lamb v. Wall, 1 F. & F. 503. 2 Salk. 578 ; Co. Lit. 47 b, note (b) ;

(<) Edmondson v. Nuttall, 17 C. B., BuUen, 119 ; Dibble v. Bowater, 2 E.

& B. 564.

1 Distress; \Arhen may be made. — (a) At common laio not till rent is in
arrears. Slay ?'. Milton, 64 Tex. 421 ; Scott v. Russell, 72 Ga. 35; M'Kinney
V. Reader, 6 Watts (Pa.) 34, 41 ; Evans v. Herring, 27 N. J. L. 243; Bailey
V. Wright, 3 M'Cord (S. C.) 484. A distress made on last day of term at noon
is too soon. Johnson r. Owens, 2 Cranch C. Ct. 160.

Rent payable in advance may be distrained for as soon as payable. Con-
way V. Starkweather, 1 Denio (N. Y.) 113 ; Beyer v. Fenstermacher, 2 Whart.
95; Anderson's Appeal, 3 Pa. St. 218; Williams v. Howard, 3 Munf. (Va.)
277 ; Peters v. Newkirk, 6 Cow. (N. Y.) 103 ; Russell v. Doty, 4 Id. 576, 581
(;3er Sutherland, J.).

Taking a promissory note suspends, but does not destroy, the right of
distress, Judge v. Fiskc, 2 Speers (S. C.) 436; Fife v. Irving, 1 Rich. L. (S. C.)
226 ; Snyder v. Kunklenian, 3 Pa. 487 ; even though lessor negotiates the
note if he takes it up, Giles v. Hays, 10 Md. 333; unless the note was taken
in satisfaction instead of security, as it would be primci facie presumed to be
in some states. It has also been held that landlord, after he has recovered
judgment, may distrain if it is unsatisfied. Chipman v. Martin, 13 Johns.
(N. Y.) 240.

Goods transferred or levied upon before rent is in arrears are ordinarily
thereby exempted from the landlord's preference lien. A voluntary assignee,
under assignment prior to accruing of rent, can hold the assigned property as
against the landlord, Burchard v. Rees, 1 Whart. (Pa.) 377 ; Belknap v.
Hastings, 1 Denio (N. Y.) 190 ; and landlord has no valid claim to be paid
one year's rent out of proceeds of goods levied upon prior to the accruing of
the rent, Mc Willie v. Hudson, Treadw. Const. (S. C.) 119; e.ven though goods
after levy are left on premises, Ayres v. Depras, 2 Speers (S. C.) 367.

Goods removed bona Jide from premises, before rent accrued, are thereby
ordinarily discharged from landlord's lien. Brown v. Duncan, Harper's L.
(S. C.) 337.


*454 DISTRESS FOR RENT. [Ch. XI. S. 10.

agreement between the landlord and tenant, if there be no
objection to it in point of law, may indeed empower the land-
lord to distrain for it earlier, for conventio vincit legem ; as
where a person took a shop, and agreed to pay a year's rent
in advance (x). So where, by the custom of the country,
half-a-y ear's rent became due on the day on which the tenant
entered, it was held that the landlord might distrain before
the half-year had expired (ij'). On the other hand, the right
to distrain may be jpostjjotied by agreement, ex. gr. until the
landlord has produced his receipt for the rent due from him
to the superior landlord (2). So a power of distress may be
granted after demand of the rent from the tenant personally,
or in some other specified manner ; but where the rent is to
be paid, "■ being lawfully demanded," the distress itself is a
sufficient demand (a).

May be -writhin six months after lease determined. — At com-
mon law a distress could not have been made after the ex-
piration of the lease (6). But by 8 Ann. c. 14, ss. 6, 7, "any
person or persons having any rent in arrear or due
[*454] upon any lease for life or * lives, or for years, or at
will, ended or determined (c), may distrain for such

(t) Jenner ?;. Clegg, 1 Moo. & R. (^() Browne ?>. Dunnery, Hob. 208 ;

213; Lee i\ Smith, 9 Excli. GG2. Kinrl v. Amniory, Ilutton, 23.

(//) Buckley i: Taylor, 2 T; R. GOO ; (hj Co. Lit. 47 b ; Pennant's case,

M'Leish r. Tate, Cowp. 781 ; Tracey 3 Co. R. ()4 ; Williams v. Stiven, 9 Q.

V. Talbot, Mod. 214 ; Jenner v. B. 14 ; Bullen, 120.
Clc'gg, 1 Moo. & R. 213; Lee v. Smitli, (r) Semble, pei- Willes, J., in Grim-

9 Exch. 0G2. wood v. Moss, 42 L. J., C. V. at p.

(z) Giles V. Spencer, 3 C B., N. S. 240, that this docs not include deter-

244 ; 26 L. J., C. P. 237. mination hy forfeiture.

In Pennsijlvania it is held that landlord has claim upon goods levied upon
prior to accruing of the rent, for rent up to the time of seizure, which may
be apportioned, though in the middle of the rent period, Anderson's Appeal,
3 Pa. St. 218; West v. Sink, 2 Yeates (Pa.) 274; Binns v. Hudson, 6 Binn.
(Pa.) 505; though it is there considered (per Gibson, C. J., in Anderson's
Appeal, supra) that the court of Pennsylvania have stretched the statute in
the interest of equity.

(/;) Under stnlntes. — In Illtnols (Sts. ch. 80, sec. 35) if tenant remove or is
about to remove his crops from the demised premises before tlie rent accrues,
the landlord may distrain, or if the tenant himself remove (sec. 33).

Jn Mississii>pi landlord may have an attachment ujion affidavit, that tenant
is about to remove his elfects from demised premises (Rev. Code, ss. 1304-

//* (leorgla likewise (Code, sec. 2285).



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 deteimined : " "provided 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 dur-
ing the possession of the tenant from whom such arrears
became due." ^

Before this act, if rent had been reserved payable, say at
Lady-day and Michaelmas, the lord would have lost his
remedy by distress for his last half-year's rent ; for he could
not have distrained for it until it was in arrear, and before
then the term would have ended (t^).

Distress on part after lease determined. — Where the tenant
is allowed to hold over part of the demised property, the
landlord may distrain on that part (g). And where the term
is prolonged as to part by the custom of the country the
landlord may distrain although the six months have ex-
pired (/). Nor does six months' limit apply to a case where
the landlord was a tenant for the life, and the term is pro-
longed till the end of the current year, under tlje statute
14 & 15 Vict. c. 25, s. 1, in lieu of emblements (^).

(d) Co. Lit. 47 b; Bullen, 120; 5; Knight v. Bennett, 3 Bing. 364 ;
Smith L. & T. 222 (2nd ed.). Griffiths v. Puleston, 13 M. & W.

(e) Nuttall V. Staunton, 4 B. & C. 358.

51. (.9) Haines v. Welch, L. R., 4 C. P.

(/) Beavan v. Delahay, 1 H. Blac. 91 ;' 38 L. J., C. P. 118. •

1 Distress after expiration of tenancy. — The statutory right of dis-
training within six montlis exists generally in America. Distress in most of
the states cannot be made after more than six months. Werner v. Ropiequet,
44 111. 522. In case of a lease from year to year, the first year's rent may be
distrained for more than six months after the end of the year. McClenaghan
V. Barker, 1 Q. B. (Ont.) 26.

In Pennsijlcania the time is unlimited. (Act of Mar. 21, 1772; 2 Purdon's
Dig. p. lOli; Moss's Appeal, 35 Pa. St. 162; Lewis's Appeal, 66 Id. 312.)

After expiration of landlord's interest distress cannot be made.
Hartley v. Jarvis, 7 Q. B. (Ont.) 545.

After tenant has abandoned possession distress cannot be made,
Bukup V. Valentine, 11) Wend. (N. Y.) 554; Williams v. Terboss, 2 Id. 148,
except in the cases provided by statute. If tenant surrenders between rent
days,- the right of distress as well as rent for that quarter is extinguished,
Greider's Appeal, 5 Pa. St. 422 ; though landlord is entitled to the emble-
ments, Bain v. Clark, 10 Johns. (N. Y.) 424.


*455 DISTRESS FOR RENT. [Ch. XI. S. 10.

In case of death of tenant, &c. — Where the original tenant
dies and his representative enters, the hxndlord may distrain
upon the latter within six months after the end of the
term (A). But where a tenant at will dies and his widow
remains in possession, no distress can be made, because not
only the tenancy but also the possession of the tenant from
whom the arrears became due has ceased (^). Where the
tenant of a farm remained a few days after the expiration of
his term, and, after entr}^ by a new tenant, went away, leav-
ing a cow and some pigs, but giving no further intimation of
a purpose to return or to continue holding any part of the
farm, it was held, that the landlord could not justify distrain-
ing the goods so left for arrears of rent, under this statute,
inasmuch as the possession of the tenant had ceased (A;).

(b) What arrears recoverable.

Ouly six years' arrears of rent are recoverable by distress
in ordinary cases, and if the Agricultural Holdings Act
applies (I}, only one year's arrears are so recoverable.^

By 3 & 4 Will. 4, c. 27, s. 42, " no arrears of rent
[*455] 01 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 acknowledg-
ment 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 set lit m

(A) Braithwaite ?•. Cooksoy, 1 II. (i) Taylcrson v. Peters, 7 A. & K.

Blac. 405 ; Smitli L. & T. 220 (2nd 100.
ed.). (/) Ante, Sect. 5, and post.

(/) Turner v. Barnes, 2 B. & S.
435; 31 L. J., Q. B. 170.

' Limit of time to distrain in America. — In most of the states there is
no express statutory limit as to the time within whicii a distress must be made.

In Ontario it must be within ten years of the time the rigiit to di.strain
accrues (Rev. Sts. ch. Ill, sec. 4) ; in F/Vf//«i«, witiiin five years (Code, sec.
2790) ; in West Virr/inin, one year (Code, cii. 93, sec. 10) ; in Dehucnre, two
years (Laws of Del. ch. 120, sec. 44).

In Kentnckij the landlord (to secure his superior lien for one year's rent)
must distrain upon ordinary pei'.soiiaity within ninety days, or upon crops
within one hundred and twenty days (Gen. Sts. ch. UO, sees. 12, 13).



applies to rents reserved on ordinary leases (w). But it is
well observed by Mr. Smith (n) that the power to distrain
for this limited amount is not lost hy reason of the mere
non-payment of rent for any time short of the period after the
lapse of which the right to recover the land is gone ; and we
shall see presently tliat, although only six years of rent
can be recovered by distress, twenty years' arrears may be
recovered in an action of covenant (o).

Right must have accrued within 12 years. — By the Real Prop-
erty Limitation Act, 1874 (37 & 38 Vict. c. 57), s. 1, "no per-
son shall make an entry or distress, or bring an action or suit
to recover any land or rent, but within twelve years next after
the time at which the right to make such entry or distress, or
to bring such action or suit, shall have first accrued to some
person through whom he claims ; or if such, right shall not
have accrued to any person through whom he claims, then
within twelve years next after the time at which the right to
make such entrj- or distress, or to bring such action or suit,
shall have first accrued to the person making or bringing the
same." The subsequent sections show when the right is to
be deemed to have first accrued. It has been established,
however, by authority, that the repealed second section of
3 & 4 Will. 4, c. 27, with which the above section is sub-
stantially identical, excepting that the period of twelve is
substituted for the period of twenty years, does not apply
to rent reserved on a demise (which is a mere incident to the
reversion), but to rents wherein a distinct estate may be had
independently of any title to the land out of which the rent
issues (^), ex. gr. an ancient quit rent (9-), a fee farm rent
reserved in letters patent (r). The right to distrain, there-
fore — for six years' arrears — subsists as long as the relation

(wi) Humfrey v. Gery, 7 C. B. B. (p) Grant v. Ellis, 9 M. & W. 113;

567; Manning V. Phelps, 10 Exch. Archbold r. Scully, 9 H. L. 360. See

69. criticism of the decisions in the Jurist

(«) Smith L. & T. (2nd ed. p. 190), Newspaper, 9 Jur., N. S., Pt. II., p.

citing Doe v. O.xenham, 7 M. & W. 315.

131. ((/) Owen v. De Beauvoir, 16 M. &

(o) Post, Chap. XIII., Sect. 1, "Ac- W. 547 ; 5 Exch. 166.

tinn on Covenant for rent ; " Paget v. (r) Humfrey v. Gery, 7 C. B. 567.
Foley, 2 Bing. N. C. 679.


*456 DISTRESS FOR RENT. [Ch. XI. S. 10.

of landlord and tenant subsists, and for the whole length,
however long, of a term created by deed, notwithstanding the
non-payment of the rent for any number of years (s).

Distress on Agricultural Holding. — If the Agricultural
Holdings Act applies (^), only one year's arrears of rent are
recoverable by distress. For it is enacted by s. 44 of
[*456] that * Act that " it shall not be lawful for any land-
lord entitled to the rent of any holding to which the
Act applies to distrain for rent which became due more
than one year before the making of such distress." But in
• order to provide for the continuance without loss to the
landlord, of the very common practice of deferring the col-
lection of rents from the day at which they became due to
a day later by a quarter or half-year than such day, this
important proviso is added : —

Deferring collection. — " Where it appears that according
to the ordinary course of dealing between the landlord and
tenant, the payment of the rent has been allowed to be de-
ferred until the expiration of a quarter of a year or half
a year after the date at which such rent legally became due,
then /or the purpose of this section the rent shall be deemed
to have become due at the expiration of such quarter or
half-year as aforesaid, and not at the date at which it legally
became due."

The words " for the purpose of this section " are impor-
tant as showing that the proviso does not turn the deferred
date into a legal date absolutely, but merely for the purpose
of fixing the time for a distress. With regard to the exact
periods of quarters and half-years, it seems that if a longer
period than these shall have been allowed, the landlord will
be able to count from the end of tlie quarter or half-year
forming part of such longer period, but that if a shorter
period shall have been allowed, such shorter period cannot
be taken into account at all.

{s) See Grant v. Ellis, 9 M. & W. & W. 131. As to ejectment, see post,
113 ; Doe d. Davcy v. Oxeiihani, 7 M. Cliap. XX., Sect. 1 (b).

(0 Ante, Sect. 6.



(c) W/irre Distress must he made.^

By the Statute of Marlebridge (52 Heil. 3, c. 15), " it shall
be huvful for no man from henceforth for any manner of
cause to take distresses out of his fee, nor in the king's
highway, nor in the common street, but only to the king
and his officers having special authority to do the same."

Distress must be on land. — As a general rule, the distress
must be made on the land from whence the rent issues, and
elsewhere (t*), except in the case of the king (or queen
regnant), who may distrain on any of his tenants' lands
wherever situate (^x), and except in the case of fraudulent
removals (y), and distresses for gale rents of quarries in the
Forest of Dean (2). A further important exception, that
the parties may by agreement arrange for a right of distress
upon land other than that out of which the rent issues, was
established by the Exchequer Chamber in Daniel v. Step-
ney (a).

* Two separate demises, &c. — Where two pieces of [*457]
land are let by two separate demises, although both
are 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 (6). Where a single rent issues out of land in

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