VII. OF RESCOUS AND POUND BREACH.

Pound breach, by the common law, is a great offence, for which the party is to be pursued by hue and cry. (Mir. c. 2, sect. 26.) And the distrainer may take the goods again. Inst. 47.

And by the laws of Virginia, "upon any pound breach or rescous, the party injured shall recover treble damages." 1 Rev. Code, ch. 89, sect. 5, p. 154.

When a man hath taken distress, and the cattle distrained, as he is driving them to the pound, go into the house of the owner; if he that took the distress demand them of the owner, and he deliver them not, this is rescous in law. 1 Inst. 161.

If the tenant tender the rent to the lord when he is to take the distress, if notwithstanding, the lord will distrain, the tenant may make rescous. And if the lord will distrain beasts of the plough, where there is sufficient distress to be taken besides, or if the lord distrain any thing that is not distrainable, either by the common law or by any statute, the tenant may make rescous. (Co. Lit. 161. a.) The same law, if no rent is due. Ibid. 47. b.

The replevy, of which we shall here speak, is an indulgence granted by the laws of this commonwealth to the tenant, who is thereby permitted, at any time within ten days after the distress made, to enter into bond. with sufficient security, for the payment of the money or tobacco, with interest and costs, at the end of three months. And we must also observe, that this kind of replevy is materially different from that regulated by the statute of 1 & 2 P. & M. and so often spoken of by the writers on the laws of England; that being a mere security to try the right of the distress, and to restore the property to the distrainer, if the right be determined against the tenant (3 Bl. Com. 13.) but this being an indulgence to the tenant, in extending the time of the payment of his rent three months, without destroying his remedy by action of replevin to determine on the right of the distress, if he thinks proper to pursue it.

Having said thus much of the replevy, as regulated by our laws, it will be sufficient to refer to the act itself, in which the true distinction between a replevy for three months, and the action of replevin will be discovered, and where the proceedings on a distress for rent are also pointed out. See Virginia Laws (1 Rev. Code, ch. 89, p. 153, sect. 1, 2, 3.) as to replevying for three months; and sections 15, 16, 17, 18, p. 155, as to the action of replevin.

IX. SALE OF THE DISTRESS.

The power of selling the distress has already been seen under the preceding division of this title. A difficulty, however, occurs under the present laws, with respect to the conduct of the officers making the distress, where the tenant does not replevy for three months, or sue out a writ of replevin, and the officer is to proceed to sell the goods

on three months credit. The act 1748 (ch. 10, sect. 1.) directed the goods to be sold in the like manner as goods or chattels taken in execution. These words are omitted in the act in the revised code (p. 153.) and the distress for rent has always been excepted out of the new execution laws. (See 1 Rev. Code, ch. 151, sect. 30, p. 302) The question then is, how is the officer to advertise the property? Under the act of 1748, no difficulty arose, because by a reference to the execution law, the mode was there pointed out.

X. IRREGULARITY IN THE PROCEEDINGS.

By the common law, if a distress was made for rent in arrear, and any irregularity was committed, the whole proceedings were void, and the distrainer a trespasser ab initio. To remedy this, the act of 11 Geo. 2, c. 19. was passed. But as that statute is not in force here, and no provision is made by our laws, quære, if it does not remain as at common law. See 3 Bl. Com. 14.

XI. LANDLORD RE-ENTERING ON NON-PAYMENT.

By Virginia Laws (1 Rev. Code, ch. 89, sect. 19, p. 155.) grantees, or assignees of lands, &c. shall have the same advantages against the lessees, by entry, for non-payment of the rent, or for waste, or other forfeiture, &c. as the lessors themselves.

By sect. 20. Lessees shall have the same benefit of contract against the grantee of the land, &c. as they could have had against the grantor.

XII. ATTORNING TO STRANGERS.

By Virginia Laws (1 Rev. Code, ch. 90, sect. 18, p. 159.) "the attornment of a tenant to any stranger shall be void, unless it be with consent of the landlord of such tenant, or pursuant to, or in consequence of, the judgment of a court of law, or the order or decree of a court of equity."

And by sect. 17. "Grants of rents, or of reversions or remainders, shall be good and effectual without the attornments of the tenants, but no tenant, who, before notice of the grant, shall have paid the rent to the grantor, shall suffer any damage thereby."

XIII. RENT IN CASE OF AN EXECUTION.

1

By Virginia Laws (1 Rev. Code, ch. 89, sect. 6, p. 154.) upon an execution against the tenant, no goods or chattels shall be removed till the plaintiff pays or tenders to the landlord the whole rent due. (Sect. 7.) Provided that it shall not extend to more than one year's rent. Sec also, 1 Rev. Code, ch. 151, sect. 54, p. 306.

And the landlord must demand the year's rent, or the sheriff will not be bound to secure it for him. 1 Strange 97.

And in case of two executions, there shall not be two years rent paid to the landlord; for the intent of the act was to reserve to the landlord only the rent for one year, it is his own fault if he let more run in arrear. Therefore one year's rent to the landlord being paid to him on

the first execution, the sheriff is not to levy for him again any thing on a subsequent execution. Str. 1024.

XIV. RENT HOW FAR RECOVERABLE BY EXECUTORS OR ADMINIS

TRATORS.

By Virginia Laws (1 Rev. Code,, p. 156, sect. 21, 23.) the same remedy is given to executors or administrators for the recovery of rent due to the testator, or intestate, as he himself might have had.

XV. ATTACHMENTS FOR RENT.

These attachments are founded on Virginia Laws (1 Rev. Code, ch. 89, sect. 8, p. 154.) they are grantable by a justice of the peace, on a well grounded apprehension of the landlord's, supported by oath, that the tenant will remove out of the county or corporation before the expiration of his term, so as no distress can be made for the same.

Attachments for rent may be levied by a constable. 2 Rev. Code, ch. 8, sect. 2, p. 5.

Oath to be administered to the landlord.

day of

will

You shall swear, that A T agreed to pay you the sum of for the tenement (describe the kind) he now occupies; that be due for the same, on the next; and that you have sufficient grounds to suspect, that the said A T will remove his out of this county (or corporation) before the expiration of his term. So help you God.

Warrant of attachment.

To the sheriff of the county of

county, to wit.

Whereas ED hath this day made oath before me, JP, a justice of the peace for the county aforesaid, that A B, his tenant, hath agreed to pay him for the rent of a plantation (or house, as the case may be) which the said A B now occupies, the sum of

on the

day of next, of which he has received no part, and that the deponent hath sufficient grounds to suspect, and verily believes, the said A B will remove his effects out of the county before the said rent will become due: therefore, in the name of the commonwealth, I require you to attach so much of the estate of the said A B, as will be sufficient to satisfy the said C D the rent aforesaid and costs; and if thereupon the said A B shall not enter into recognizance, with one or more sufficient securities, for the payment of the said rent, on the said next, and the costs, then that you secure the estate so attached in your hands, or so provide that the same may be liable to further proceedings herein, at the next court to be held for this county, when you are to make return of this warrant, with an account what you shall have done thereupon. Given, &c

day of

Bond in the usual form, payable to the sheriff, or his assigns, with this condition:

The condition of the above obligation is such, that whereas the said E F, sheriff (or constable, as the case may be) hath this day attached sundry goods and chattels of the said A B, upon an attachment issued from G H, a justice of the peace of the said county, to secure the payment of which will be due to CD, for rent, on the day of next, now if the said A B shall well and truly pay to the said EF, or his assigns, the sum of and all costs, on the said This bond is to be assigned by the sheriff, or constable, to the landlord, and annexed to the attachment, on which should be this return.

day of

next, then, &c.

By virtue of this warrant, I did attach sundry goods of the within named A B, which I restored to him on his and his security's executing the annexed bond, by me assigned to the within named C D, according to law.

XVI. PRACTICAL DIRECTIONS AS TO THE MAKING OF A DISTRESS FOR RENT.

See (Hunt's) Gilb. Distr. 330.

It is said that the landlord himself may make the distress, or authorise any person to do it. (See Gilb. Distr.) But it seems most proper, if not the only legal mode, in this state, to employ the sheriff or constable, the words "sheriff or officer," being the terms used by our laws. See Rev. Code, ch. 89, sect. 1, p. 153.

Warrant of Distress.

To Mr. A B. 'Distrain the goods and chattels of C D (the tenant) in the house he now dwells in (or, on the premises in his possession) situate in in the county of for pounds, being years rent (or, as the case is) due to me for the same, at the day of last past (or any other) and for your so doing, this shall be your sufficient warrant and authority. Dated the day of

in the year

W T.

If the goods be removed from the premises, the landlord may distrain them, within ten days thereafter: in that case the authority to distrain must vary in its expression to suit the case.

being

Being legally authorised to distrain, you enter on the premises, and make a seizure of the distress. If the distress be made in a house, you seize a chair or other piece of furniture, and say, I sieze this chair (or whatever it be) in the name of all the goods in this house, for the sum of years rent (or, as the case is) due to me (or to W T, your landlord) on the day of past (or any other) (and if the distress be made by any other than the landlord, you add) by virtue of an authority from the said W T, for that purpose.

last

You then proceed to take an inventory of so many goods, as you judge will be sufficient to cover the rent distrained for, and also the charges of the distress. Having done this, you make a copy of the inventory, according to the following form.

Lord

day of

An inventory of the several goods and chattels distrained by me, A B (the distrainer) the in the year of our in the houses, out houses, and lands (according to the case) of C D (the tenant) situate in of the county of (and if the distress be made by any other than the landlord, say) { by the authority and on the behalf of W T, your landlord) for the sum of years rent (or, as the case is) due to me (or to the said W T) on the day of last past. In the dwelling house, one table, six chairs, &c. In the cow house, six cows, two calves, &c.

pounds, being

At the bottom of the inventory you subscribe the following notice to the tenant.

years

Mr. C D. Take notice, that I have this day distrained on the premises above mentioned, the several goods and chattels specified in the above inventory, for the sum of pounds, being rent (or, as the case is) due to me (or, to the said W T) on the day of last past (or, any other) for the said premises; and that unless you pay the said rent, with the charges of distraining for the same, within ten days from the date hereof, the said goods and chattels will be sold according to law. Given under my hand, the in the year of our Lord

day of

A B, sheriff (or constable.)

A true copy of the above inventory and notice must either be given to the tenant himself or left at his house; or, if there be no house, on the most notorious place on the premises. And it is proper to have a person with you when you make the distress, and also when you serve the inventory and notice, to examine the inventory, and to attest, if there be occasion, the regularity of the proceedings.

The safest way is to remove the goods immediately, and in your notice to acquaint the tenant where they are removed: but it is now most usual to let them remain on the premises, leaving a man in possession till you are intitled by law to sell them.

If the sheriff is in possession of the goods of a tenant, by vir tue of an execution, the landlord need not make a distress, but should forthwith serve him with the following

Notice.

To E S, sheriff of the county of

Take notice, that there is now due to me, from T H, the person to whom the goods belong, of which you are now in possession, by virtue of the commonwealth's writ of fieri farias, &c. returnable (here mention the return) the sum of for one year's rent duc on the day of Witness my hand, this

day of

last past. in the year

W H, landlord of the premises.

See Gilb. Distr. (by Hunt) 334, 335.