lord, as a pledge, and thereby deprive the party of the means of paying the rent. (4 Burr. 589.) For these reasons, by various statutes in England (the substance of many of which we have adopted in this state) the mode of proceeding after making the distrsss, particularly as to the sale of it, has been pointed out, leaving the right of distraining as it stood at the common law. The necessity then of recurring to the origin of distresses by the common law is sufficiently obvious, as without it, the most familiar case would be perfectly unintelligible. See 2 Bl. Com. 42. Litt. sect. 213. Co. Litt. 142. a. Litt. sect. 131, 132. Co. Litt. 142. b.

It was formerly held that a distress would not lie, if the rent was reserved upon any thing except land; but it has lately been decided, that a landlord may distrain for the rent of ready furnished lodgings. (2 Bos. & Pull, N. Rep. 224. Newman v. Anderton. Bradb, on Distr. 26.) So, on a reservation of rent, for a mill and stock, and a slave, if the lessee be evicted of the slave, the rent shall be apportioned. See 3 Hen, & Munf. 470. Newton v. Wilson.

1. FOR WHAT CAUSES A DISTRESS MAY BE MADE, AND IN WHAT OTHER MANNER RENT MAY BE RECOVERED.

Distress for rent must be, for rent in arrear, therefore it may not be made on the same day on which the rent becomes due; for if the rent is paid in any part of that day, whilst a man can see to count money, the payment is good.

It must not be after tender of payment; for if the landlord come to distrain the goods of his tenant for rent behind, before the distress the tenant may, upon the land, tender the arrearages, and if after that a distress be taken, it is wrongful; and if the landlord have distrained, if the tenant, before the impounding thereof, tender the arrearages, the landlord ought to deliver the distress, and if he doth not the detaineris unlawful. Even so it is, in case of a distress for damage feasant (or damage done by cattle trespassing) the tender of amends before the distress maketh the distress unlawful; and after the distress, and before the impounding, the detainer unlawful. 2 Inst. 107. 8 Co.

147.

Any person or persons having rent in arrer, or due upon any lease or demise for life or lives, may bring an action or actions of debt for such arrears of rent, in the same manner as if such debt were due and reserved upon a lease for years.' 1 Rev. Code, ch. 89. sect. 11, p. 155. See also Selw. N. P. 467.

And by sect. 12. The power of distress is given to a person having rent in arrear, upon any lease for life or lives, or for years, or at will, after the determination of the respective leases, sect. 13) provided, that the distress be made within six months after the determination of the lease, and during the continuance of the landlord's title or interest, and during the possession of the tenant. No distress shall be made after the expiration of five years after the rent became due.

Sect. 14. Not to affect any debts, &c. due to the commonwealth. By the common law, two distresses cannot be taken for one rent, if there were sufficient goods when the first distress was made, unless

too little was taken by mistake.
ficient, 2 Lutw. 1532. Mo. 7. Comb. 546. Burrows. 539.

Otherwise it is, if there was not suf

If distress and sale is made for rent pretended to be in arrear, where in truth no rent is in arrear, the owner of the goods distrained and sold, his executors, &c. shall have remedy by action of trespass, or upon the case, against the person so wrongfully distraining, his executors &c. and shall recover double the value of the goods distrained and sold, and full costs of suit. 1 Rev. Code, ch 89, sect. 4, p. 154.

By sect. 22. (page 156.) Where rent accrues on lands, &c. held in right of the wife, during her life, the husband may recover the same after her death, either by action of debt, or by distress.

If the distress be taken of goods without cause, the owner may make rescous; but if they be distrained without cause, and impounded, the owner cannot break the pound and take them out, because they are in the custody of law. 1 Inst. 47. 3 Bl. Com. 12.

In the case of a house being burnt before the expiration of the tenant's interest, it has generally been held, that the tenant was bound to pay the rent, annually, during the time for which he was to hold it, notwithstanding he covenanted to repair, accidents by fire excepted. And to this point are the cases of Paradine v. Jane. Allen 27 ; and Monk & Cooper. 2 Str. 763. But in the case of Brown v. Quilter (Ambler, 619) it was held on a case exactly similar, that it was good ground for relief, by injunction in chancery; and the chancellor expressed his surprise that a defence was not allowed at law to such action. (See Francis's Maxims (Hening's edit ) Maxim VII. pl. (2) where all the late decisions on this point are collected.

II. WHAT GOODS MAY BE DISTRAINED, AND WHAT NOT.

Distress for rent must be of such things whereof a valuable property is in some body, and therefore dogs, bucks, does, conies, and the like, that are fere naturæ, cannot be distrained, 1 Inst. 47.

Although it be of valuable property, as a horse, yet when a man or woman is riding upon him, or an axe in a man's hand cutting of wood, and the like, they are for that time privileged, and cannot be distrained. 1 Inst. 47.

But it is said, that if one be riding upon a horse damage feasant, the horse may be led to the pound with the rider upon him. 1 Sid. 440,

442.

And it hath been held, that horses joined to a cart, with a man upon it, cannot be distrained for rent (although they may for damage feasant) but both cart and horses may, if the man be not upon the cart. 1 Vent. 36.

Valuable things shall not be distrained for rent, for benefit and maintenance of trades, which by consequence are for the commonwealth, and are there by authority of law; as a horse in a smith's shop shall not be distrained for the rent issuing out of the shop, nor an horse in an hostry, nor the materials in a weaver's shop for making of cloth, nor cloth nor garments in a taylor's shop, nor sacks of corn or meal in a mill, nor any thing distrained for damage feasant, for it is in custody of the law; and the like. 1 Inst. 47.

But it seems that a chariot in a common livery stable is distrainable,

because the owner of the stable is not bound to receive it, as in the case of an inn-keeper, &c. See Burrow. 1498. Bl. Rep. 483. Francis v. Wyatt.

Beasts belonging to the plough shall not be distrained (which is the ancient common law of England, for no man shall be distrained by the utensils or instruments of his trade or profession, as the axe of the carpenter, or the book of the scholar) while goods or other beasts may be distrained. 1 Inst. 47.

But this rule holds only in distresses for rent arrear, amercements and the like; but doth not extend to cases where a distress is given, in the nature of an execution, by any particular statute, as for poor rates and the like. 3 Salk. 136.

So beasts of the plough and cart may be distrained for the poor rate, See Bur. 579. Hutchins v. Chambers.

Furnaces, cauldrons, or other things fixed to the freehold, or the doors or windows of a house, or the like, cannot be distrained. 1 Inst.47. Things for which a replevin will not lie, so as to be known again, as money out of a bag, cannot be distrained. 2 Bac. Abr. 109.

But money in a bag sealed may be distrained; for that the bag sealed may be known again.

Generally, 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 opened to infinite frauds upon the landlord; and the stranger hath his remedy over by action on the case against the tenant, if by the tenant's default the goods are distrained, so that he cannot render them when called upon. 3 Bl. 8.

But on particular circumstances perhaps a court of equity may relieve. As in the case of Fowkes and Joyce, in the common pleas, a person driving sheep to London to sell, by agreement with the master of an inn, put them into the field at so much a score for the night. The landlord seeing them, asked whose they were, but consented to their staying there, and afterwards distrained them for rent due to him from the master of the inn, and it was adjudged for the landlord. 3 Lev. 260. 2 Ventr. 50.

But in the same case, upon a bill for relief in equity, the lords commissioners seemed to think, that the grounds lying to the inn, and used therewith, ought to have the same privilege as the inn hath, and that passengers' cattle ought not to be distrainable there. (2 Vern. 129.) And it appeared in this case, that on the landlord's coming and seeing the sheep, he pretended to be angry. Upon which the owner offered to take out the sheep, at which time they were not distrainable for the rent, having not been levant and couchant (that is, not having so long remained upon the ground, as to have laid down and risen up again to feed) so that the court looked upon the consent as a fraud, to get them to be left all night, by which they became liable to the distress. And it was decreed, that the landlord should answer for the value of the sheep, and pay costs both in law and equity. Prec. Chan. 7.

Where a stranger's beasts escape into the land, they may be distrained for rent, though they have not been levant and couchant, provided they are trespassers; but if the tenant of the land is in default, in not repairing his fences, whereby the beasts came into the land,

the landlord cannot distrain such beasts, though they have been levant and couchant, unless he has caused notice to be given to the owner, and the owner suffers them to remain there afterwards. Lutw. 364. In case of rent reserved upon a lease for years, the landlord cannot distrain cattle escaping into his lands until they be levant and couchant; for if the landlord had had the lands in his own hands, he ought to have repaired the fences; and when he puts in a lessee, he ought by covenant oblige him to repair: and therefore in that case, if the law would allow the landlord to distrain the cattle of a stranger which came in by escape, before that they be levant and couchant, it would be in effect to allow a man to take advantage of his own wrong. Therefore, if the cattle come in by default of the owner of the cattle, then they may be distrained before they be levant and couchant; and if in default of the tenant of the land, there they cannot be distrained until they have been levant and couchant, that is to say, for rent upon leases for years. And in such case the landlord shall not take the cattle before that he has given notice to the owner, that they are upon the land liable to his distress; and if he doth not come to take them away, then they become distrainable. And by Treby, chief justice; where the cattle escape accidentally, there they are not distrainable, until they have been levant and couchant; but if they escape by default of their owner, they are distrainable the first minute. L. Raym. 168, 169.

In the case of Broden and Pierce, where a rent charge was in arrear for twenty years, and cattle escaped out of the next ground, and were distrained; lord Nottingham (in equity) relieved against it. 2 Vern.

231.

If ten head of cattle were doing damage, a man cannot take one of them and keep it till he be satisfied for the whole damage; but he may bring an action of trespass for the rest. 12 Mod. 660.

If a man come to distrain damage feasant, and see the beasts in his ground, and the owner chase them out, of purpose, before the distress taken; yet the owner of the soil cannot distrain them, and if he doth, the owner of the cattle may rescue them; for the beasts must be damage feasant at the time of the distress. 1 Inst. 161.

For distress, damage feasant is the strictest distress that is; and the things distrained must be taken in the very act; for if the goods are once off, though on fresh pursuit, the owner of the ground cannot take them. 12 Mod. 661,

III. AT WHAT TIME AND PLACE THE DISTRESS SHALL BE TAKEN.

For a rent service the landlord cannot distrain in the night, but in the day time; and so it is of a rent charge; but for damage feasant, one may distrain in the night; otherwise, it may be, the beasts may be gone before he can take them. 1 Inst. 142.

For before sun rising, or after sun set, no man may destrain but for damage feasant. Mirror. c. 2, sect. 26.

By the common law, if the lessor did not find sufficient distress on the premises, he could resort no where else, and therefore tenants, who were knavish, made a practice to convey away their goods and stock fraudulently from the house or lands demised, in order to cheat their landlords. 3 Bl. Com. 11.

But by Virginia Laws (1 Rev. Code, ch. 89, sect. 9, p. 154.) where goods and chattels are fraudulently or clandestinely carried off from the premises, on which rent is in arrear, the landlord may distrain them, within ten days, in the same manner as if they had remained on the land.

Sect. 10. Provided, that goods so carried off, and bona fide sold for a valuable consideration, shall not be liable to be seized.

IV.

THAT REASONABLE DISTRESS SHALL BE TAKEN.

"Distresses shall be reasonable, and not too great, and he that taketh great and unreasonable distresses shall be amerced for the excess of such distresses." 1 Rev. Code, ch. 89, sect. 24. p. 156.

For example, if the lord distrain two or three oxen for twelve pence, or the like small sum, and the owner bring a replevy of the oxen, and the lord avow the taking of them for the twelve pence of his own shewing, he shall make fine; or the party may have his action upon this statute. 2 Inst. 207.

If the lord distrain an ox, or horse, for a penny; if there were no other distress upon the land holden, the distress is not excessive: but if there were a sheep, or a swine, or the like, then the taking of the ox or horse is excessive, because he might have taken a beast of less value. 2. Inst. 107.

V. MANNER OF MAKING A DISTRESS.

Gates or inclosures may not be broken open, nor thrown down, to make a distress. 1 Inst. 161.

Nor may the lessor enter into the tenant's house, unless the doors are open. 2 Bac. Abr. 111.

Upon a question about taking a distress, it was held by the lord chief justice Hardwick, that a padlock put on a barn door could not be opened by force, to take the corn by way of distress. 9 Viner 128.

But if the outer door of an house is open, one may break an inner door to take a distress Ca. Temp. Hardw. 168.

If a landlord comes into a house, and seizes upon some goods for a distress, in the name of all the goods of the house; that will be a good seizure of all. 6 Mod. 215.

VI. DISTRESS HOW TO BE DEMEANED.

By Virginia Laws (p. 164, sect. 24.) "it shall not be lawful for any person taking any distress, to drive or remove the same out of the county where such distress was taken. And whosoever doth so, shall be amerced at the discretion of a jury." 1 Rev. Code, ch. 189, sect. 24, p. 156.

Cattle distrained may not be worked or used, unless for the owner's benefit, as a cow milked, or the like; much less may they be abused or hurt. Cro. Jac. 148.

If the distress be lost by the act of God; as, if the distress dies in the pound, without any default in the distrainer, in such case he who made the distress may distrain again. 1 Salk. 248.