Imágenes de páginas
PDF
EPUB

now the landlord may distrain any goods of his tenant, carried off the premises clandestinely, wherever he finds them within thirty days after, unless they have been bona fide sold for a valuable consideration: and all persons privy to, or assisting in such fraudulent conveyance, forfeit double value to the landlord (f). The landlord may also distrain the beasts of his tenant, feeding upon any commons or wastes, appendant, or appurtenant to the demised premises. The landlord cannot lawfully break open a house, to make a distress, for that is a breach of the peace (u). But, being in the house, he may break open an inner door (x); and he may, with the assistance of a peace-officer, break open in the day time any place, whither the goods have been fraudulently removed and locked up to prevent a distress; oath being first made, in case it be a dwelling-house, of a reasonable ground to suspect that such goods are concealed therein (y).

Where a man is entitled to distrain for rent, he ought to distrain for the whole at once, not for part at one time, and part at another. (228) But if he distrains for the whole, and there is not sufficient on the premises, or he happens to mistake the value of the thing distrained, and *so takes an insufficient distress, he may take a second distress to complete his [*85]

remedy (z).

A distress must be proportioned to the thing distrained for. By the statute of Marlbridge, 52 Hen. 3, c. 4, if any man take a great or unreasonable distress, for rent in arrear, he shall be heavily amerced by the same. As if the landlord distrains two oxen for twelve-pence rent; the taking of both is an unreasonable distress; though if there were no other distress nearer the value to be found, he might reasonably have distrained one of them (a). The remedy for an excessive distress is by action on the case (b) founded upon the statute of Marlbridge; an action of trespass is not maintainable upon this account, there being no injury at the common law (c).

When the distress has been taken and notice of it given and an appraisement made in compliance with the statute (d), the next consideration is the disposal of it, if the rent should still remain unpaid. The things distrained must at common law in the first place be carried to some pound, and there be impounded by the taker. But, in their way thither, they may be rescued by the owner, in case the distress was taken without cause, or contrary to law: as if no rent be due; if they were taken upon the highway, or the like; in these cases the tenant

(t) Stat. 11 Geo. 2, c. 19.

(u) A landlord who enters on his tenant's premises to distrain, is justified in opening an outer door in the ordinary way in which other persons can do it, when it is left so as to be accessible to all who have occasion to go into the premises (Ryan v. Shilcock, 7 Exch. 72), but he cannot break open an open door of a stable, although not within the curtilage, to levy a distress. (Brown v. Glenn, 16 Q. B. 254.) See further as to the

mode of entry to distrain, Hancock v. Austin, 14 C. B. N. S. 634; Nash v. Lucas, L. R. 2 Q. B. 590.

(x) Co. Litt. 161.

(y) Stat. 11 Geo. 2 c. 19, s. 7.

(2) See Bagge v. Mawby, 8 Exch. 641.
(a) 2 Inst. 107; Bro. Abr. t. Assize, 291;
Prerogative, 98.

(b) See Chandler v. Doulton, 3 H. & C. 553.
(c) Hutchins v. Chambers, 1 Burr. 590.
(d) 2 Will. & M. sess. 1, c. 5, s. 2.

(228) All the arrears of rent which may have accrued during the tenancy may be included in one proceeding, even though the rent of several years may be in arrear. Sherwood v. Phillips, 13 Wend. 479. But where there is an expiration of the term, and the lease is not continued but a new one is executed at a different rent, and this lease is extended for another year, a distress for the last year will not authorize the landlord to distrain for the rent which fell due under the first lease. Webber v. Shearm in, 2 Denio, 362.

[graphic]

may lawfully make rescue (e). But if they be once impounded, even though taken without any cause, the owner may not break the pound and take them out; for they are then in the custody of the law (ƒ).

A pound (parcus, which signifies any enclosure) is either pound-overt, that is, open overhead; or pound-covert, that is, close. By the statute 1 & 2 Ph. & M. *c. 12, s. 1, no distress of cattle can be driven out of the hundred where [*86] it is taken, unless to a pound-overt within the same shire; and within three miles of the place where it was taken. This is for the benefit of the tenant, that he may know where to find and replevy the distress. And by statute 11 Geo. 2, c. 19, which was made for the benefit of landlords as well as tenants, a person distraining for rent may turn any part of the premises, upon which a distress is taken, into a pound, pro hac vice, for the securing of such distress. If live animals were distrained and impounded in a common pound-overt, their owner was at common law bound to take notice of it at his peril; but if in any special pound-overt, so constituted for this particular purpose, the distrainor was required to give notice to the owner: and, in both these cases, the owner, and not the distrainor, was bound to provide the beasts with food and necessaries. But if they were put in a pound-covert, as in a stable or the like, the landlord or distrainor had to feed and sustain them (g). Now, however, under two recent statutes (h), horses, cattle, and sheep distrained must be supplied with food by the distrainor, or if confined without sufficient food and water for more than twelve hours, may be supplied therewith by any person at the cost of the owner, and the distress may even be sold for reimbursement of the expenses thus incurred.

The mode of impounding crops when, distrained under 11 Geo. 2, c. 19, is provided for by s. 8 of that statute, and household goods, or other dead chattels, which are liable to be stolen or damaged by weather, ought to be impounded in a pound-covert, else the distrainor must answer for the consequences.

When impounded, the goods were formerly, as was before observed, only in the nature of a pledge or security to compel the performance of satisfaction; and upon this *account it was held (i), that the distrainor is not at [*87] liberty to work or use a distrained beast. And thus the law still continues with regard to beasts taken damage-feasant, and distresses for suit or services; which must remain impounded, till the owner makes satisfaction; or contests the right of distraining, by replevying the chattels. To replevy (replegiare, that is, to take back the pledge) was, when a person distrained upon applied to the sheriff or his officers, and had the distress returned into his own possession; upon giving good security to try the right of taking it in a suit of law, and, if that were determined against him, to return the cattle or goods once more into the hands of the distrainor. This is called a replevin, of which more will be said hereafter (k). At present I shall only observe, that as a distress is at common law in nature of a security for the rent, a replevin answers the same end to the distrainor as the distress itself; since the party replevying gives security to return the distress if the right be determined against him.

A distress, though it put the owner to inconvenience, and was therefore a

(e) Co. Litt. 160, 161.

(f) lb. 47. See 6 & 7 Vict. c. 30.

(g) Co. Litt. 47.

(h) 12 & 13 Vict. c. 92, amended by 17 & 18 Vict. c. 60.

(i) Cro. Jac. 148.

(k) Vol. iii. c. 10.

punishment to him, yet, if he continued obstinate, and would make no satisfaction or payment, afforded at common law no remedy at all to the distrainor. Though for a debt due to the crown, unless paid within forty days, the distress was always saleable (1). And for an amercement imposed at a court leet, the lord may also sell the distress (m); partly because, being the king's court of record, its process partakes of the royal prerogative (n); but principally because it is in the nature of an execution to levy a legal debt. And so, in the case of a statutory distress, which is also in the nature of an execution, the power of sale is likewise usually given to effectuate and complete the remedy. And in like manner, by several acts of parliament (0), in all cases of

distress *for rent, if the tenant or owner do not, within five days (p) [*88]

after the distress is taken, and notice of the cause thereof given him, replevy the same with sufficient security, the distrainor, with the sheriff or constable, shall cause the same to be appraised by two sworn appraisers, and sell the same towards satisfaction of the rent and charges; rendering the overplus, if any, to the owner himself (q). And by this means a full and entire satisfaction may now be had for rent in arrear by distress, a remedy originally given at common law; and sale consequent thereon, which is added by act of parliament. Before quitting this subject I must observe that two points were long ago. decided (r) which had an important bearing upon the law of distress 1st, that where an entry upon premises is permitted or an authority is given by the law an abuse of it by the party to whom it is thus given will render him a trespasser ab initio. If a landlord who distrains for rent works or kills the distress, the law adjudges that the wrong-doer entered for the express purpose of doing the tortious act, and because the act which demonstrates the origina! intention is a trespass he shall be a trespasser ab initio. The 2nd point decided was that a mere non-feasance cannot have the retrospective operation just indicated, for this reason, that a bare non-feasance is not a trespass. If therefore a landlord distrains for rent, and thereupon the lessee tenders him the rent in arrear, and requires the goods distrained to be delivered up to him, a refusal on the part of the landlord thus to deliver them, will not make him a trespasser ab initio. Though here a distinction must be taken between a tender made before and one made after the impounding of the goods, *if the tender be made and refused before the goods are impounded, [*89] there will be vested in the tenant a right of action, whereas a tender made after the impounding is too late (s).

It is clear that this doctrine of trespass ab initio, if strictly applied, must bear extremely hard on landlords who, having entered lawfully to distrain, would by committing any subsequent abuse of the legal power conferred and thus exercised become liable in trespass for the original entry and subsequent continuance upon the premises on which the distress was levied. Therefore, by the statute 11 Geo. 2, c. 19, s. 19, it was provided that where any distress shall be made for any rent justly due, and any irregularity or unlawful act shall be

() Bro. Abr. tit. Distress, 71. (m) 8 Rep. 41.

(n) Bro. Abr. tit. Distress, 71.

(0) See stats. 2 Will. & M. sess. 1, c. 5; 4 Geo. 2, c. 28; 11 Geo. 2, c. 19.

(p) Five days, that is five times twentyfour hours, must elapse before sale (Harper v. Taswell, 6 C. & P. 166); and the tenant

may replevy after that time in case the distress is not sold. (Jacobs v. King, 5 Taunt. 541.)

(q) See Evans v. Wright, 2 H. & N. 527. (r) The Six Carpenters' Case, 8 Rep. 290. (8) Compare Loring v. Warburton, E. B. & E. 507, with Glynn v. Thomas, 11 Exch. 870.

[graphic]

afterwards done by the party distraining or his agent, the distress shall not be deemed unlawful nor the distrainor be deemed a trespasser ab initio, but damages may be recovered by action for the wrong done. By this statute accordingly in the particular case of landlord and tenant, the hardship flowing from the doctrine as to trespass ab initio was removed. The 1st and 2nd sections of the statute just cited are material in reference to the remedies of a landlord against his tenant. By them is provided a very stringent remedy in case of the fraudulent removal of goods by a tenant. If goods of the tenant are fraudulently conveyed away from the demised premises, they are made liable to a distress within the period of thirty days to whatever place they may be removed liability thus attaching to the particular goods themselves and not merely attaching to them so long as they continue the goods of the tenant. Sec. 2 provides, however, that no landlord shall take or seize goods as a distress which have been bond fide sold for valuable consideration to persons not privy to the fraud. This 2nd section consequently operates in defeasance of *the [*90] provisions of the 1st, and takes all goods thus sold out of its operation Let us suppose that a party having possession of goods fraudulently removed by a tenant holds them innocently as a bailee or as a donee, without having given value for them. In this case the liability of goods to distress will continue, so that the close or house of the person in whose possession they are may be entered, and his locks even may be broken without any previous request, in order to effect a recaption of the goods. And though this may seem hard upon the individual: we must remember- that goods fraudulently removed under the circumstances supposed are not usually secreted in a man's close or house without his privity or consent-that it might be very difficult for a landlord within the time allowed for the distress to put himself in a position to prove the privity to the fraud of the person actually in possession of the goods, and that if notice were required the remedy of the landlord might in practice be entirely defeated (u).

Advowsons.

Origin of.

IV. An advowson is the perpetual right of presentation to a church, or ecclesiastical benefice. Advowson, advocatio, signifies in clientelam recipere, the taking into protection; and therefore is synonymous with patronage, patronatus: and he who has the right of advowson is called the patron of the church. For, when lords of manors first built churches on their own demesnes, and appointed the tithes of those manors to be paid to the officiating ministers, which before were given to the clergy in common (as was formerly mentioned (x)), the lord, who thus built a church, and endowed it with glebe or land, had of common right a power annexed of nominating such minister as he pleased (provided he were canonically qualified) to officiate in that church of which he was *the [* 91] founder, endower, maintainer, or, in one word, the patron (y). This instance of an advowson well illustrates the nature of an incorporeal hereditament. It is not itself the bodily possession of the church and its appendages, but it is a right to give another man a title to such nature of. bodily possession. The advowson is the object of neither the sight

Incorporeal

(u) Williams v. Roberts, 7 Exch. 618; Thomas v. Watkins, id. 630.

(a) Vol. I. p. 131.

(y) This origin of the jus patronatus, by

building and endowing the church, appears also to have been allowed in the Roman empire. Nov. 26, t. 12, c. 2; Nov. 118. c. 23.

nor the touch; and yet it perpetually exists in the mind's eye, and in contemplation of law. It cannot be delivered from man to man by any visible bodily transfer, nor can corporeal possession be had of it. If the patron takes corporeal possession of the church, the church-yard, the glebe, or the like, he intrudes on another man's property, for to these the parson has an exclusive right. The patronage can therefore pass from one owner to another only by operation of law, or by deed of grant, which is a kind of invisible mental transfer: and being so vested it lies dormant and unnoticed, till occasion calls it forth, when it produces a visible corporeal fruit, by entitling some clerk, whom the patron shall please to nominate, to enter, and receive bodily possession of the lands and tenements of the church.

Are appendant,

or in groes.

Advowsons are either advowsons appendant, or advowsons in gross. Lords of manors being originally the only founders, and of course the only patrons of churches (z), the right of patronage or presentation, so long as it continues annexed to the possession of the manor, as some have done from the foundation of the church to this day, is called an advowson appendant (a) and it will pass or be conveyed, together with the manor, as incident and appendant thereto, by a grant of the manor only, without adding any other words (b). But where the property of *the [*92] advowson has been once separated from the property of the manor by legal conveyance, it is called an advowson in gross, or at large, and never can be appendant any more; but is for the future annexed to the person of its owner, and not to his manor or lands (c), unless indeed the separation was only of a temporary character, as if made by a person having only a partial interest (as for years or for life) in the manor, or being made by the owner in fee is only for a term of years or for life (d). An advowson may however be conveyed by a lord of a manor with part of the land of the manor, without parting with the whole manor, in which case it remains appendant to the land with which it was conveyed, so as to pass by a subsequent conveyance of that land although not named, with this exception however, that it does not where the crown is the grantor (e).

Advowsons are of three kinds - donative, presentative, and collative. It is probable that all were originally of the first kind, of which there are now but

Donative ad

vowson.

few. An advowson is donative when the patron, whether the king or a subject, has the right to confer the church and all the temporalities by investiture, without the necessity of any presentation to or institution by the bishop. The only restriction upon the choice of the clerk is that he must have received ordination (f). Moreover, beyond such compulsion as is produced by ecclesiastical censure, the *patron is under no necessity to fill the church when vacant, but he can take the property to his own

[blocks in formation]

[*93]

Bishop of Meath v. Winchester, 3 Scott, 561;
Rooper v. Harrison, 2 K. & J. 86.

(e) Harg. Co. Litt. 121, 6 a; Att.-Gen. v. Sitwell, 1 Y. & C. 559.

(f) As to ordination, see 13 & 14 Car. 2, c. 4, s. 14; 44 Geo. 3, c. 43; and as to the requisites which must be complied with by the clerk, see 13 Eliz. c. 12, ss. 1, 3; 13 & 14 Car. 2, c. 12, ss. 1, 3; 13 & 14 Car. 2, c. 4, s. 6; 1 W. & M. c. 8, s. 7; 1 Geo. 1, c. 13, s. 2; 9 Geo. 2, c. 26; 6 Geo. 3, c. 53.

« AnteriorContinuar »