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*itle or interest, as well as the tenant's possession, continue at the time of the distress (28). If the lessor does not find sufficient distress on the premises, formerly he could resort no where else ; and therefore tenants, who were knavish, made a practice to convey away their goods and stocks fraudulently from the house or lands demised, in order to cheat their landlords. But now (c) 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 valuable consideration : and all persons privy to, or assisting in, such fraudulent conveyance, forfeit double the value to the landlord (29), (30), The landlord may also distrain the beasts of his tenant, feeding upon any commons or wastes, appendant or appurtenant to the demised premises (31), (32). The landlord might not formerly break open a house, to make a distress, for that is a breach of the peace. But when he was in the house, it was held that he might break open an inner door (d); and now (e) he may, by the assistance of the peace-officer of the parish, 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 4 reasonable ground to suspect that such goods are concealed therein (33).
Where a man is entitled to distrain for an entire duty, he ought to distrain for the whole at once, and not for part at one
time, and part at ano: [ *12] 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 his remedy (g).
Distresses must be proportioned to the thing distrained for. By the statute of Marlbridge, 52 Hen. III. c. 4. if any man takes a great or unreasonable distress, for rent-arrere, he shall be heavily amerced for the same. As if (h) the landlord distrains two oxen for twelve-pence rent; the taking
(g) Cro. Eliz. 13. Stat. 17 Car. II. c. 7. 1 Burs (d) Co. Litt. 161. Comberb. 17.
590. (f) 2 Lutw. 1532.
(28) Ante 8. n. 8. Although this proviso is becomes due in 30 days after: if not then due, in terms confined to the possession of the they must be followed in 30 days after the renk tenant, yet it has been holden, that where the does become due. (2 R. S. 502, 3 15). tenant dies before the term expires, and his (31) See accordingly in New York. (? R. personal representative conținue in possession S. 502, § 12). during the remainder and after the expiration (32) If the lord come to distrain cattle of the term, the landlord may distrain within which he sees within his fee, and the tenant, şix calendar months after the end of the term or any person, fo prevent the lord from disfor rent due for the whole term. 1 H. Bla training, drive the cattle out of the Lord's see 465. And in 1 H. Bla. 7. n. a. t was holden, into some other place, yet he may pursue and that the term was continued by the custom of take the cattle. Co. Litt. 161. a. But this the country for the purpose of giving a right rule does not hold to distresses damage-feaLo the landlord to distrain on the premises in sant, which must be made on the land. Id. which the way going crop remained. See (33) See 2 R. S, 50s, 18. Selw. N. P. 6 ed. 381.
(34) It may be as well here to observe, that (29) See 11 Geo. II. c. 19. sects. 1, 2, 3. if a landlord come into a house and seize upon The act is remedial, not penal, 9 Price, 30. It some goods as a distress, in the name of all applies to the goods of the lenanı only which the goods of the house, that will be a good are fraudulently removed, and not those of a seizure of all. 6 Mod. 215. 9 Vin. Ab. 127. stranger. 5 M. & S. 38. And the rent must But a fresh distress may be made on the same ve in arrear at the time of the removal. I goods, which have been replevied, for subse. Saund. 284. a. 3 Esp. 15. ? Saund. 2. n. b. quent arrears of rent. ! Taunt. 218. So if sed vid. 4 Camp. 136.
the cattle distrained die in the pound, the loss (30) In New York, the goods may be fol. will fall on the party distrained on, and not towed within 30 days after their removal, if upon the distrainor. Burr. 1738.' I Sails rent were due at the time of their removal or 248.'11 East, 54
of both is an unreasonable distress; but, if there were no other distress nearer the value to be found, he might reasonably have distrained one of them; but for homage, fealty, or suit and service, as also for parliamentary wages, it is said that no distress can be excessive (i). For as these dis tresses cannot be sold, the owner, upon making satisfaction, may have his chattels again. The remedy for excessive distresses is by a special action on the statute of Marlbridge, for an action of trespass is not maintainable upon this account, it being no injury at the common law (1) (35), (36).
When the distress is thus taken, the next consideration is the disposa. 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 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 may lawfully make rescue (k). 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 (?).
A pound (parcus, which signifies any inclosure) is either pound-overt, that is, open overhead; or pound-covert, that is, close. By the statute 1 & 2 P. & M. c. 12. no distress of cattle can be driven out of the hundred where it is taken, *unless to a pound-overt within the (*13] same shire ; and within three miles of the place where it was taken (37). This is for the benefit of the tenants, that they may know where to find and replevy the distress. And by statute 11 Geo. II. c. 19. which was made for the benefit of landlords, any person distraining for rent may turn any part of the premises, upon which a distress is taken, into a pound, pro hac vice, for securing of such distress. If a live distress, of animals, be impounded in a common pound-overt, the owner must take notice of it at his peril ; but if in any special pound-overt, so constituted for this particular purpose, the distrainor must give notice to the owner : and in both these cases, the owner, and not the distrainor, is bound to provide the beasts with food and necessaries. But if they are put in a poundcovert, in a stable or the like, the landlord or distrainor must feed and sustain them (m) (38). A distress of 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.
(i) Bro. Abr. t. assise, 291. prerogative, 98.
(7) Co. Litt. 47.
(35) See 2 R. S. 503,6 19, in New-York. and full costs. 2 W. & M. sess. I. c. 5. s. &
(36) And see 2 Stra. 851. 3 Leon. 48, See 2 R. S. 504, 927, in New York. crceptions, 1 Burr. 582. I H. Bla. 13. 9 (37) In New York, if the distress be for East, 298. It is no bar to this action, that rent, the pound must be a pound overt in the between the distress and sale of the goods county, or such other convenient place as the distrained, the parties came to an arrange- officer distraining may approve. (2 R. S. ment respecting the sale, 1 Bing. 401. 4 D. 503, 9 20). If the distress be for damage-fea. & R. 539. 2.B. & C. 821. S. C.; and the sant, the pound must be the nearest in the action is sustainable though there was a ten- county. (Id. 517, 94). The owner may feed der of the rent before the distress was made, them; if he do not do it, it would seem the 2 D. & R. 250. Where more rent is distrain- pound keeper should. (Id. 5, &c). ed for than is due, the remedy is at common (38) The distrainor cannot tie up cattle im. law, and is not founded on the 52 Hen. 3. c. pounded; and if he tie a beast and it is stran. 1: nor on the 2 W. & M. c. 5. s. 5. Stra. 851. gled, he will be liable in damages. ! Salk. Where no rent is due, the owner of the goods 248. If the distress be lost by act of God. as distrained may, in an action of trespass on the by death, the distrainor may distrain again case, recover double the value of the goods 11 East. 51. Burr. 1738. Vol. II.
When i npoinded, 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 hath been held (n), that the distrainor is not at 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) is, when a person distrained upon applies to the sheriff or his officers, and has 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 be 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.
At present I shall only observe, that, as a distress is at common [*14 ] *law only in nature of a security for the rent or damages done, a
breplevin 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. piger bort
This kind of distress, though it puts the owner to inconvenience, and is therefore a punishment to kim, yet, if he continues obstinate and will make no satisfaction or payment, it is no remedy all to the distrainor. But for a debt due to the crown, unless paid within forty days, the distress was always saleable at common law (o). And for an amercement imposed at a court-leet, the lord may also sell the distress (p): partly because, being the king's court of record, its process partakes of the royal prerogative (?); but principally because it is in the nature of an execution to levy a legal debt. And so, in the several statute-distresses before mentioned, which are also in the nature of executions, the power of sale is likewise usually given, to effectuate and complete the remedy. And, in like manner, by several acts of parliament (r), in all cases of distress for rent, if the tenant or owner do not, within five days after the distress is taken (39), 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. And, by this means, a full and entire satisfaction may now be had for rent in arrere, by the mere act of the party himself, viz. by distress, the remedy given at common law; and sale consequent thereon which is added by act of parliament.
(n) Cro. Jac. 148.
(9) Bro. Ibid. 12 Mod. 330.
In 2 W. & M. c. 5. 8 Ann. c. 14. 4 Goo. Il c. 28.11 Gen. II. c. 19.
(39) A reasonable time after the expiration 4 B. & A. 208. 1 B. & C. 145. Though the of the five days is allowed to the landlord for act authorizes a sale after the five days, it does appraising and selling the goods. 4 B. & A. not take away the right to replevy after the 208. sed vid. I H. Bla. 15. The five days five days in case the distress is not sold, hu are reckoned inclusive of the day of sale ; as it would be otherwise after a sale. 5 Taunt if the goods are distrained on the 1st, they 451. 1 Marsh. 135. By the consent of the must not be sold before the 6th. 1 H. Bla. 13. tenant, the landlord may continue in posses An action lies on the equity of this act for sion longer than the five days without incur. selling within the five days. Semb. id. If ring any liability; and his so continuing in the distrainor continue in possession more possession will not of itself create any prethan a reasonable time beyond the five days, sumption of collusion between him and the an action of case or trespass lies on the equi- tenant to defeat an exec Wion. 7 Price, 690. tv of the statute. 11 East, 395. Str. 717.
tutes (particu.arly 11 Geo. II. c. 19. in case of irregularity in the method of distraining, and 24 Geo II. c. 24. in case of mistakes committed by justices of the peace), even tender of suflicient amends to the party injured is a bar of all actions, whether he thinks proper to accept such amends II. Arbitration is where the parties, injuring and injured (43),
submit all matters in dispute, concerning any personal chattels or personal wrong, to the judgment of two or more arbitrators; who are to decide the controvorsy: and if they do not agree, it is usual to add, that another person be called in as umpire, (imperator or impar) (r), to whose sole judgment it is then referred: or frequently there is only one arbitrator originally appointed. This decision, in any of these cases, is called an award. And thereby the question is as fully determined, and the right transferred or settled, as it could have been by the agreement of the parties, or the judgment of a court of justice (y). (But the
right of real property cannot tħus pass by a mere awarde): which subtilty in point of form (for it is now reduced to nothing else) had its rise from feodal principles ; for, if this had been permitted, the land might have been aliened collusively without the con.
(*) Whart. Angl. sacr. I. 772. Nicols. Scot. Hist. libr. ch. 1. prope finem.
(y) Brownl. 53. I Freem. 410.
I & C. 7 East, 150. I J. B. Moore, 358, higher security; and no action can be sup460. Cro. Eliz. 46. 2 Wils. 86. 6 Rep. ported for the non-performance of the simple 43. b.
contract, Cro. Car. 415. Bac. Ab. Debt, G. The satisfaction must be a reasonable one. unless indeed such new security be void: but Generaily speaking, the mere acceptance of a the mere taking of an instrument of a higaer less sumn is not in law a satisfaction of a order as a colaleral or additional security, greater sum, 5 East, 230. and this though an does not preclude the debtor from suing on additional security be given. 1 Stra. 426. the original contract, and this though judg. An agreement between a debtor and creditor, ment be obtained on such security. 2 Leon. thal part of a larger sum due should be paid 110. 6 T. R. 176, 7. Payment and acceptby the debtor, and accepted by the creditor as ance of a part of a debt before the day it falls a satisfaction for the whole, might, under spe. due, or at a place where the whole debt was cial circumstances, operate as a discharge of not payable, in satisfaction of the whole, is a the whole ; but then the legal effect of such good satisfaction, Co. Litt. 212. b.; and so if an agreement might be considered to be the the debtor give a chose in possession for å same as if the whole debt had been paid, and chose in action, 2 T. R. 24. 'as the gift of a part had been returned as a gift to the party horse, or other property in specie. Co. Litt. paying. Per Holroyd, J. 2 B. & C. 481 Á 212, b. The mere fulfilment of an act which debtor's assignment of all his effects to a trus. a party is bound in law to do, is no satisfaction. lee, to raise a fund for the payment of a com. Per Grose, J. 5 East, 302. A release of an position to his creditors, is a sufficient satis. equity of redemption is no satisfaction. 2 faction, 2 T. R. 24; so if a third person gua. Wils. 86. Conferring a benefit to a third perrantees the payment of the less sum. 11 East, son, at the debtor's request, is sufficient. See 390. So if a creditor, by his undertaking to Skin. Rep. 391. accept a composition, induce the debtor to The satisfaction should proceed from the part with his property to his creditors, or in party who wishes to avail himself of it, for duce other creditors to discharge the debtor, when it proceeds entirely from a stranger, it to enter into a composition-deed, or deliver will be a nullity. See 5 East, 294. i Smith, up securities to him, such creditor would be 515. Cro. Eliz. 541. bound by such undertaking. 2 Stark. Rep. Accord and satisfactior hy copartner, is a 407. 2 M. & S. 120. 1 Esp. 236. And bar to any action against the other partners, where several creditors, with the knowledge 9 Rep. 79. b. , so the acceptance of satisfac. of each other, agree on the faith of each tion from a joint tort-feasor_discharges the other's undertaking to give time to, or accept other wrongdoers, Sembl. 3 Taunt. 117. and a composition from a debtor, the agreement accord and satisfaction to one of several cowill be binding on every creditor who is party plaintiffs, will operate as a discharge from all. to it. 3 Cainp. 175. 2 M. & S. 122. 16 See 13 Ed. IV. 6. 5 Co. 11?. b. Ves. 374; and see further as to composition (43) For the law of arbitrations in general, with creditors, 3 Chitty's Com. L. 681 to 698. see Com. Dig. Arbitrament Tidd. Prac. Sta It sbould be here also observed, that when a ed. 873 to 885. Caldwell on A bitration ; pond, or other security under seal, has been Kyd on Arbitration ; 3 Chi Com. Law, 637 given and accepted in satisfaction of a simple to 668. contract debt, the latter is merged in such