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detaining whereof beyond the day of payment is an injury to the party entitled to it.
(2.) For neglect of personal service to the lord.
(4.) For trespass of cattle. The owner of the soil can detain them until recompensed.
(5.) For several duties and penalties assessed by parliament.
Things Distrained. All chattels personal may be distrained, unless particularly exempted.
Things Exempt. Animals ferae naturae are exempt. Articles in the personal use or occupation of a man are for the time privileged, also valuable things in the way of trade, which are presumed to belong to customers. Generally speaking, whatever goods are found on the premises, whether in fact they belong to the tenant or to a stranger, are distrainable for rent. Otherwise a door would be open to infinite frauds upon the landlord.
Goods of a Stranger. These may be seized, when upon the premises. The stranger has his remedy against the tenant by action, if, by the tenant's default, the chattels are distrained, so that he cannot redeem them, when called upon.
Beasts of a Stranger. Where the beasts fouud on a tenant's land are placed there with the consent of the owners of the beasts, they are distrainable at once by the landlord for rent in arrear, as also where the stranger's cattle break the fences and commit trespass. But if the lands are not sufficiently fenced, the landlord cannot distrain the cattle, till they have been levant and couchant on the land, that is, have been there long enough to have lain down and risen to feed, which is one night at least; by which time the law presumes knowledge of their whereabouts by the owner, and negligence in not seeking them. Yet if the tenant neglected to repair the fences, and thereby the cattle entered his grounds, without fault of the owner, they are not distrainable for rent, until actual notice has been given to the owner, and he has neglected to remove them.
Other Articles Exempt. A man's tools and utensils of trade are exempt from distress. This is for the public good, as their deprivation would disable the owner from serving the state.
? In a few of the United States the remedy by distress does not exist.
A distress is merely intended to compel the payment of rent, and not as a satisfaction for non-payment, and therefore to deprive a party of the instrument and means of paying, would counteract the very end of the distress. Formerly beasts of the plough ard sheep were exeinpt, but they now may be seized under the statute.
Perishable Articles. Nothing shall be distrained for rent, which may not be rendered again in as good plight as when distrained. Hence milk, fruit and the like cannot be distrained. Anciently, but not now, neither shocks of corn nor growing grain could be distrained. Things fixed to the freehold cannot be distrained, as windows, doors and chimney pieces.
Distresses, how Taken, Disposed of and Avoided. Formerly they were merely looked upon as a pledge or security for the payment of rent or satisfaction of damage done. And so the law continues with regard to distresses of beasts, taken damage feasant, over which the distrainor has no other power than to retain them, until satisfaction is made. But distresses for rent in arrear have taken the place of the common law system.
When and how Made. Distresses must be made by day, unless in the case of damage feasant, where the beasts might escape, unless at once distrained. The premises must be entered upon by the party or his bailiff. Formerly this had to be done during the continuance of the lease, but now, if the tenant holds over, the landlord may distrain within six months after the determination of the lease, provided his own title or interest continues at the time of the distress.
Fraudulent Removal, Formerly if he could not find sufficient distress on the premises, he could go nowhere else, and therefore knavish tenants, in anticipation of a distress, fraudulently removed their goods. But now the landlord may distrain the goods of his tenant carried from the premises clandestinely, wherever he finds them, within thirty days thereafter, unless they have been bona fide sold for a valuable consideration, and all persons privy to or assisting in such fraudulent conveyance forfeit double the value to the landlord.
Beasts. The landlord may also distrain the beasts of his tenant, feeding upon any common appendant to the demised premises. Forcible Entrance. The landlord might not formerly
break open a house to make a distraint, for that is a breach of the peace. But when he was in the house, it was held he might break open an inner door, and now he may, by the assistance of the peace officer, break open in the day time any place, where 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 such goods are concealed there.
Second Distraint. The distraint should be for the entire amount due, and not for part at one time and part at another. If there be not sufficient on the premises at the time, a second distress may complete the remedy.
Excessive Distraint. Distresses must be proportioned to the thing distrained for. If unreasonable, a party may be heavily amerced for the same. For homage, fealty, or suit and service, it is said no distress can be excessive, for as these distresses cannot be sold, upon making satisfaction, the owner may have his chattels again. The remedy for excessive distresses is by a special action; for an action of trespass is not maintainable upon this account, it being no injury at the common law.
Disposal of the Thing Distrained. It must be impounded in some pound by the taker. On its way thither, it may be rescued by the owner, in case the distress was taken without cause, or contrary to law; as if no rent was due, or if it was taken on the highway, or the like. But if once impounded, though taken without cause, it is in the custody of the law, and cannot be forcibly removed.
The Pound. A pound (parcus, an enclosure), is either pound overt, open overhead, or pound covert, that is, close. No distress of cattle can be driven out of the hundred, except to a pound overt, within the same shire, not more than three miles distant. This is for the benefit of the tenants, that they may know where to find and replevy the distress. · 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 distress of animals be impounded in a conimon pound overt, the owner must take notice at his peril, but if in any special pound overt, 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 pound covert, in a stable or the like, the landlord or distrainor must feed and sustain them. A distress of household goods or other dead chattels, which are liable to be stolen or damaged by the weather, ought to be impounded in a pound covert, else the distrainor must answer for the consequences.
Use of Distrained Beast. Formerly the goods impounded were only in the nature of a pledge or security to compel satisfaction, and a distrainor could not work or use a distrained beast. Thus the law continues as to beasts taken damage feasant, and distresses for suit or services, which must remain impounded until satisfaction given or the owner contests the right of distraining, by replevying the chattels.
Replevin. To replevy (replegiare—to take back the pledge), is when a person distrained upon applies to the sheriff, and has the distress returned him, upon giving good security to try the right of taking it in a suit at law, and if that be determined against him, to return the cattle or goods to the distrainor. This is a replevin, which answers the same end to the distrainor as the distress itself.
Appraisement and Sale. This kind of distress, though it punishes the owner, yet if he makes no satisfaction or payment, is no remedy to the distrainor. By act of parliament, in all cases of distress for rent, if the tenant or owner do not within five
days after the distress is taken, and notice of the cause given · him, replevy the same with sufficient security, the distrainor, with
the sheriff or constable, shall cause the property to be appraised by two appraisers and sell the same towards satisfaction of the rent and charges, rendering the overplus, if any, to the owner himself. Thus a full satisfaction may now be had for rent in arrears, by the mere act of the party himself, viz.: by distress.
Irregularities in Process. Formerly if an irregularity was committed, it vitiated the whole, and made the distrainors trespassers, but now the party aggrieved shall only have an action for the real damage sustained, and not even that, if tender of amends be made before the action is brought.
6. Seizing of Heriots. This was another species of self remedy, not unlike the taking of cattle or goods in distress. Heriot
illeriots were the best beasts or goods of the tenant or owner of the land, which, by custom, were given to the lord on the death of such tenant.
service is a species of rent, and the lord may distrain for this, but in heriot custom, the lord may seize the identical thing itself, but nothing else. The like speedy remedy may be given to many things that lie in franchise, as waifs, wrecks, estrays, deodands, and the like, which may be seized without the formal process of a suit, which, however, may, if desired, be resorted to.
Second. From the joint act of the parties. Either by accord, or by arbitration.
1. Accord. This is a satisfaction agreed upon by the party injuring and the party injured, which, when performed, bars all actions upon this account. By statutes, in case of irregularity in the method of distraining and in mistakes by justices of the peace, even tender of sufficient amends to the party injured is a bar to all actions, whether acceptable or not.
2. Arbitration. This is where the parties injuring and injured submit all matters in dispute concerning any personal chattels or personal wrongs to the judgment of arbitrators, who are to decide the controversy. If they do not agree, it is usual to add another person, as umpire (imperator or impar), to whose sole judgment it is then referred. The decision is called an award. The question is thus as fully determined, as if by agreement of the parties or the judgment of a court.
Real Estate. Award. But the right of real property cannot thus pass by a mere award, otherwise, in feudal times, the land might have been aliened collusively, without the consent of the superior. Yet doubtless an arbitrator may now award a conveyance or lease of land.
Revocability of Submission. Though, originally, the submission to arbitration was by word or by deed, which was revocable, it is now the practice to enter into mutual bonds, with condition to stand by the award.
When Resorted to. Arbitration may be resorted to not only where the cause is pending, but also where no action has been brought. By statute, all parties desiring to end a controversy may agree, that their submission of a suit to arbitration shall be made a rule of a court of record, and may insert such agreement in their submission, which agreement being proved on oath by one of the witnesses thereto, the court will make a rule, that such submission and award shall be conclusive. After such rule, the parties disobeying may be punished for a contempt of