exempted from levy and sale, such officer or person shall be liable to the party injured for three times the value of the property illegally taken or seized, to be recovered by action of trespass, with costs of suit. "SEC. 4. For the purpose of recovering the damages provided for in the third section of this act, justices of the peace shall have jurisdiction to the amount of one hundred dollars. "SEC. 5. All laws exempting property from execution, and all acts and parts of acts coming in conflict with the provisions of this act, be and the same are hereby repealed. This act to take effect from and after its passage; Provided, should any disagreement arise between any officer and defendant in execution, about and concerning the value of any species of property allowed by this act, it shall be the duty of said officer forthwith to summon two disinterested householders, who, after being duly sworn by some justice of the peace, shall proceed to appraise such property as said defendant may select. "SEC. 6. Nothing in this act shall be so construed as to prevent landlords from holding a lien on the crop growing or grown on land for rent due for the same." Where a man is entitled to distrain for an entire duty or sum, he ought to distrain for the whole at once, and not for part at one time and part at another. 3 Bl. Com., 11. 2 Bac. Ab., 352. But if he distrains for the whole and there is not sufficient on the premises, or he happens to mistake in the value of the thing distrained, and so takes an insufficient distress, he may take a second distress to complete the remedy. 2 Bl. Com., 12. Woodf. Land. & Ten., 395 A distress cannot be made for the interest due upon rent, but only for the principal sum, and if such interest be collected by distress, the party distrained upon may recover back the excess in an action on the case. 6 Johns. Rep., 43. The landlord may distrain for all the arrears of rent arising during the tenancy, though the rent of several years should happen to be in arrear. 3 Kent Com., 433. 5 Cowen Rep., 501. It is well settled that an executor cannot distrain for rent accruing after the death of the testator who was seized in fee, because it goes to the heir. 5 Cowen Rep., 501. If the lessor die on the day on which the rent is payable, after sunset, and before midnight, the heir and not the executor may demand the rent, for it is not in strictness due till the last minute of the natural day, although it may be more convenient to pay it before. Toller's Law of Ex., 177. 1 Saund., 287. Where there are separate démises, there ought to be separate distresses on the several premises subject to the distinct rents, no distress on one part can be good for both rents. But it would be otherwise with regard to separate premises under the same demise, though they lie in different counties, in which case a distress may be taken in either county for the whole rent; and a chasing of the distress from one county to the other would be a continuance of the taking, though this would not be legal where the counties do not join. Woodf. Land. & Ten., 393—6. But, as our statutes require the distress warrant to be executed by a sheriff or constable, it would seem that they can only levy it in the county for which they are elected. When the distress is taken, the next consideration is the disposal of it. For which purpose, the things distrained must, in the first place, be carried to some pound and there impounded by the taker. But in the way thither they may be reserved by the owner, in case the distress was taken without cause, or contrary to law. 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. 3 Bl. Com., 12. A pound signifies any enclosure, and it is either pound-overt, that is, open overhead, and is either a common or public pound, or a private pound, where the owner of the beasts impounded may come to feed them without trespass to any other; or it is a pound-covert, or close, where the owner cannot come for the purpose aforesaid, as a house. 2 Bac. Ab., 348. 3 Bl. Com., 12. When cattle are kept in a public pound no notice is necessary to the owner to feed them; he must take notice of it at his peril. But if they are put into a private pound or close of him that distrains, or of a stranger, it is otherwise; notice must then be given to the owner. 1 Inst., 47. Beasts, it is said, ought to be put into a public pound, for, if they are placed in a private pound, the distrainor must keep them at his peril with provision, (unless notice is given,) for which he shall have no satisfaction, and if they die for want of sustenance, the distrainor shall answer for them. 2 Bac. Ab., 348. Woodf. Land. & Ten., 397. But if they are put in a pound-covert, as a stable, or the like, the landlord or distrainor must feed and sustain them. 3 Bl. Com., 13. Dead chattels, however, as household goods, &c., which may receive damage by the weather, must be put into a poundcovert, otherwise the distrainor is answerable for them, if they be damaged or stolen away. 3 Bl. Com., 13. 1 Burn's Justice, 491. The distrainor cannot work, or otherwise use the things distrained, as to work a horse, &c., for he hath no property therein, but a bare power by act of law to take it. 2 Bac. Ab., 348. It is said that if a man takes cows for a distress, he cannot milk them. There is a dictum in Cro. Jac., 148, saying that milch kine may be milked by the distrainor, because it is for their preservation, and consequently of benefit to the owner, and Mr. Woodfall inclines to think that this dictum would be recognized as law at this time. Woodf. Land. & Ten., 398. This opinion may be correct in a case where the owner neglects the cows, and they would be damaged unless milked by the distrainor. The distrainor cannot tie or bind a beast in the pound, though it be to prevent his escape; and if he ties a horse to a post in the pound by reason whereof the horse strangles himself, the owner may have an action of trespass. 2 Bac. Ab., 348. But if cattle die in the pound without any fault of the distrainor, he may distrain again, or have an action for the rent. 1 Salk., 248. By the common law, if a man break the pound, or the lock of it, or part of it, he greatly offendeth against the peace, and commits a trespass against the king, and to the party in delay of justice, and therefore hue and cry is to be levied against him, as against those who break the peace, and the party who distrained may again take the goods wheresoever he may find them, and again impound them. 1 Inst., 47. 1 Burn's Justice, 492. When a man hath taken a distress, and the cattle distrained go into the stable or house of the owner, as he is driving them to the pound, if he that took the distress demand them of the owner and he deliver them not, this is a rescous in law. 1 Inst., 161. At the common law, a distress for rent was in the nature of a pledge, or security, to compel the performance of satisfaction, and the landlord had no power to sell or dispose of it; and it often proved of little or no benefit towards hastening the payment of the rent. 2 Bac. Ab., 349. 3 Bl. Com., 13. If the tenant was disposed to controvert the legality of the distress, either by denying any rent to be due, or by averring it to be paid, the law provided him with a remedy by the writ of replevin, which was a writ authorizing the sheriff to take back the pledge and deliver it to the tenant, on receiving security from him to prosecute the writ to effect, and to return the chattels taken if he should fail in his suit. 3 Kent Com., 476. But the policy of the law respecting distresses for rent, has been changed. It was inconvenient, if not absurd, that property should be kept in an inactive state, in order to compel a man to perform his stipulated payment. And it seems to have been the design of our legislature to make the remedy by distress nothing more than a summary mode of seizing and selling the tenant's property to satisfy the rent which he owes. By sec. 6 of "An act concerning landlords and tenants," it is enacted that "When any goods or chattels shall be distrained for rent, and the tenant or owner of the goods so distrained, shall not within five days after such distress taken, and notice thereof, and the cause of taking, replevy the same, with sufficient security according to law; the person distraining or his agent duly authorized, may, with the sheriff or constable of the county, cause the goods and chattels so distrained, to be appraised, by two reputable freeholders, under oath; which oath may be administered by such sheriff or constable, to appraise said goods and chattels, according to their best judgment and understanding; the person making such distress on giving ten days notice, may sell such goods and chattels at public auction, and after retaining the amount of rent distrained for, and the costs of distress and sale, shall pay the overplus, if any there be, to such tenant or tenants." Gale's Stat., 436. By sec. 3 of the act of February 26, 1841, it is enacted that "In all cases where distress shall be made for rent, before any sale shall be made of the property distrained, it shall be the duty of the party distraining to have the defendant summoned before the circuit court or justice of the peace, and then and there to prove his demand as in other cases. Justices of the peace shall have jurisdiction in cases under this act to the amount of one hundred dollars; and in case the defendant shall have absconded or removed from the state, then notice shall be given before justices of the peace or the circuit court, as in cases of attachment." Sess. Laws, 1841, p. 171. By the statute of 1827, it appears that the property distrained may be held by the landlord five days, as a pledge for the payment of the rent due from the tenant, unless he sooner pays the rent or replevies the property; and it is apprehended that the act of 1841 does not alter the rule as to the time the property shall remain as a pledge. By the last act, the manner in which it may be determined whether there is any rent due, or what amount may be due, in case of disagreement and tender by the tenant, is essentially changed; now, instead of the tenant's being compelled to resort to his writ of replevin, the landlord, in all cases, must summon the tenant before a court having jurisdiction of the amount, and there prove his demand. The tenant, however, is not deprived of his right to pay the rent within the five days before being summoned, consequently the summons should not be issued before the expiration of the five days. When the amount of rent due to the landlord is ascertained and determined by the court, the landlord is then to proceed and cause the property to be appraised and sold, pursuant to the statute. The evident intention of the act of 1841, was to compel the landlord, after he had seized his tenant's property, to resort to a court of law, so that it may be judicially determined whether there is any, and how much, rent due to him, before selling the property. The effect of this act is still to leave the property distrained in the hands of the landlord until the determination of the proceedings in the court, and, in many cases, it must operate oppressively on the tenant without af fording the landlord an adequate remedy. To render this summary remedy useful, some further legislation is necessary. (1) If it is deemed essential, in order to protect the tenant against the unfounded or exorbitant demands of his landlord for rent, that the amount shall be judicially ascertained before the sale of the property distrained, it would seem that the object would be better accomplished by abolishing the whole law relative to distresses for rent, and substituting the attachment law. FORMS OF PROCEEDINGS IN CASES OF DISTRESS FOR RENT. La Salle county, ss. of the said county: To the sheriff or to any constable Distrain the goods and chattels of C. D., which are liable to be distrained, wherever they may be found in the county of La Salle, where the said C. D. resides, for the sum of twenty-five dollars, being one quarter's (or "one year's") rent due to me on the day of 18 for the premises now in his possession, demised to him by me, and situated in said county. Dated the day of John Smith. 18 Form of inventory. An inventory of the several goods and chattels of C. D., distrained by me, Thomas Clark, constable, on the day of 18 in the county of La Salle, where the said C. D. resides, by virtue of the warrant and authority, and in behalf of John Smith, the landlord, for the sum of twenty-five dollars, being one quarter's (or "one year's") rent due to the said landlord on the 18 for the premises day of in the warrant mentioned, to wit: Mr. C. D., Two tables, six chairs, &c. Form of notice to the tenant. Take notice, that I have distrained the several goods and chattels specified in the above inventory, for the (1) In Indiana the landlord cannot distrain in person, or by his bailiff, but he must go before a justice of the peace, and upon oath obtain a warrant to a constable to make the distress, and if the tenant replevies the goods, he gives bond to prosecute the landlord and not the officer. Harris v. M'Faddin, 2. Blackf. Rep., 70. It is provided by statute, in New York, that no officer shall proceed to make distress for rent, unless there be annexed to, or delivered with, the warrant of distress, an affidavit made by the landlord for whose benefit the distress is to be made, or by his agent or receiver, before some officer authorized to administer oaths, specifying the amount of rent due, and the time for which it accrued. 2 R. S., 501. |