as claimed, he may tender a bond with sureties to the officer to pay all rent due, not exceeding one year's rent. The bond is to be executed to the landlord, and delivered to him, and for his use, by the officer, and it is to be received as a substitute for his lien on the execution.a

This power of the landlord does not extend to the seizure of goods, as a distress for rent, when the goods have been sold bona fide, and for a valuable consideration, either by the ten

ant himself, or by execution, before the seizure was *483 made. But a mortgage of the goods is said not *to

be a sale within the provision, so as to protect them from distress. And if the interest of the tenant in the term has ceased, and the tenancy ended, and the tenant, with his goods, removed from the premises, a distress for rent could not formerly be made, though it be within thirty days from the termination of the tenancy.d The remedy by distress, according to the common law, assumed the tenancy to continue, and ceased with it ;e but by a provision in the statute of 8 Anne, (and which has been adopted in this country,) the remedy by distress is extended to six months after the termination of the tenant's lease, whether the lease be for life, for years or at will. It was made necessary, under the statute, that the landlord's title and the tenant's possession

■ N. Y. Revised Statutes, vol. i. 746. sec. 12-17. The process and forms of the summary proceeding in New-York, to oust the tenant wrongfully holding over, are given in a note to the case of Nicholas v. Williams, 8 Cowen, 1. If the tenant for life or years, or any other person coming in under or by collusion with such tenant, wilfully holds after demand and one month's notice to quit, he is chargeable at the rate of double the yearly value of the land, and the special damages and equity cannot afford him any relief. N. Y. Revised Statutes, vol. ii. 745. sec. 11. Double rent is likewise given if a tenant gives notice of his intention to quit, and does not remove pursuant to notice. Ibid. sec. 10.

b N. Y. Revised Statutes, vol. ii. 503. sec. 16. Neale v. Clautice, 7 Harr. & Johns. 372. S. P. Craddock v Riddlesberger, 2 Dana's Ken. Rep. 209. 211.

d Terboss v. Williams, 5 Cowen's Rep. 407. Goods of a mere under-tenant, who removed from the premises before any rent became due, are not liable to distress. It would be otherwise if the goods belonged to an assignee of the original tenant. Acker v. Witherell, 4 Hill's N. Y. R. 112.

• Co. Litt. 47. b. Pennant's Case, 3 Co. 64. Stanfill v. Hicks, 1 Lord Raym.

N. Y. Revised Statutes, vol. ii. 500. sec. 1.

should equally have continued; but by the New-York Revised Statutes, it is declared generally, that the distress may be made upon any goods remaining or removed, in the same manner, within the same time, and under the same provisions and restrictions, as if the tenancy had not ended. The distress may also be made, under the above limitations, for all the arrears of rent arising during the tenancy, though the rent of several years should happen to be in arrear. And in

a

▾ N. Y. Revised Statutes, vol. ii. 500. sec. 1. Ibid. 503. sec. 16. The remedy by distress, if the goods be removed, is confined to thirty days after the removal, and if remaining upon the demised premises, to six months from the determination of the lease. Bukup v. Valentine, 19 Wendell, 554. The New-York statutes have likewise given a summary remedy to the landlord, with the aid of a magistrate, in cases where the premises are deserted, and the rent left in the arrear. N. Y. Revised Statutes, vol. ii. 512. A like summary remedy to obtain possession, where there are not goods on the premises sufficient to pay the rent, is given by statute in Pennsylvania, in 1830.

Braithwaite v. Cooksey, 1 H. Blacks. 465. Ex parte Grove, 1 Atk. 104. Wright v. Williams, 5 Cowen's Rep. 501. Blake v. De Liesseline, 4 M'Cord, 496. Sherwood v. Phillips, 13 Wendell's Rep. 479. The English real property commissioners, in their report in 1829, proposed that no person should bring any action, or distrain for any arrears of rent, after six years from the time when the same became due. This provision was incorporated into the statute of 3 and 4 William IV. c. 27, but it does not apply to actions of debt for rent upon any indenture of demise: they may be brought in such cases within twenty years, or when there is a written admission that the rent is due. It was held, in St. Mary's Church v. Miles, 1 Wharton, 229, that mere lapse of time, without demand of payment, was no evidence by presumption, that the ground rent, (which the case says is favoured in law,) founded on deed, has been released or extinguished, though it may raise a presumption that the arrears have been paid.

There is a variety of opinion in the books as to the recovery of interest upon rent in arrear. In covenant for rent payable in money, interest has been allowed. Clark v. Barlow, 4 Johns. Rep. 183. Obermyer v. Nichols, 6 Binney, 159. 4 M'Cord's Rep. 59. S. P. So, in debt for rent, Dennison v. Lee, 6 Gill & Johns. 383. On the contrary, in Cook v. Wise, 3 H. & Munf. 463-501, interest was held not to be recoverable by way of damages in debt for rent, for the party had his remedy by distress. Not recoverable in suit in Louisiana, but from the judicial demand. Perret v. Dupre, 19 Louis. R. 341. But all the cases agree that, under the remedy by distress, the rent only, and not interest by way of damages, is recoverable. Braithwaite v. Cooksey, 1 H. Blacks. 465. Lansing v. Rattoone, 6 Johns. Rep. 43. Dennison v. Lee, 6 Gill & Johns. 383. Sherry v. Preston, 2 Chitty's R. 245. Vechte v. Brownell, 8 Paige's R. 212. All the statute provisions relative to the remedy by distress assume this principle. It is also adjudged that the remedy by distress exists only in cases where the rent is, by the agreement of the parties, made certain, either in money or services, or can be reduced to a certainty. Valentine v. Jackson, 19 Wendell's Rep. 302. The N. Y.

Webber v. Shearman,a it was held, that if the tenant remain in the occupation of the premises for several successive years,

Revised Statutes, vol. i. 747. sec. 18, gives the remedy by distress, when any certain services or certain rent," reserved out of land, is due. They allow the owner of a wharf in the city of New-York, to distrain for wharfage any goods and chattels on board of any vessel which has used the wharf, though the vessel had removed from the wharf to another part of the city. See New-York Revised Statutes, (edit. 1813,) vol. ii. sec. 212. 217.

Whenever goods are wrongfully distrained, the owner may recover them by an action of replevin. This action of replevin lies also in other cases, where goods have been tortiously taken or detained. Pangburn v. Patridge, 7 Johns. Rep. 140. See, also, 6 Binney, 2; 16 Serg. & Rawle, 300; Baker v. Fales, 16 Mass. Rep. 147; Pease v. Simpson, 3 Fairfield, 261; Seaver v. Dingley, 4 Greenleaf, 306; 12 Wendell's Rep. 32; 14 Johns. Rep. 87; 15 ibid. 402; 19 ibid. 31; 20 ibid. 467; 1 Wendell's Rep. 109, to the same point. In Seaman v. Baker and McWhister, in the Supreme Court of Nova Scotia, in July, 1845, replevin was sustained after a learned discussion, in the case of trespass upon land for stones tortiously taken from a quarry and worked into grindstones. It was formerly the understanding and practice in the English courts and books, that replevin was the remedy applied only to a wrongful distress for rent, but it has lately been considered as applicable to any wrongful detention of chattels. Dore v. Spuney, 2 Starkie, 288. 1 Chitty, Gen. Pr. 811. This is now the prevalent American doctrine. Baron Parke said, in George v. Chambers, 11 Meeson & Welsby, 149, and the other judges agreed, that replevin was a remedy at common law in all cases where goods are improperly taken, though not in a case of goods taken in execution under a court of regular jurisdiction, and only where it has no jurisdiction. Revised Code of Indiana, edit. 1838, p. 476. 2 Blackf. Ind. Rep. 174. 176, note 3. Statute of Ohio, 1831. The N. Y. Revised Statutes, vol. ii. 522, have also granted the writ of replevin whenever goods have been wrongfully taken, or are wrongfully detained. But the statute provides that replevin shall not lie for goods taken by warrant for any tax, assessment or fine, nor for goods seized on execution or attachment, unless they be goods exempted by law from such process, nor unless the party hath a right at the time to reduce the goods into his possession.

In Indiana, by statute, 1831, replevin lies for goods unlawfully detained, though they may have been lawfully taken. 5 Blackf. Ind. Rep. 176, note 3.418. note. So, the writ lies in Michigan, Illinois, Missouri, Delaware and Arkansas, for goods wrongfully taken or detained. Territorial Act of Michigan, April 4th, 1833. Revised Laws of Illinois, edit. 1833, p. 508. Skinner v. Stouse, 4 Missouri Rep. 93. Revised Statutes of Arkansas, 659. 3 Harv. Del. Rep. 113. The decisions in Massachusetts and Maine, that replevin will lie for goods unlawfully detained, though not preceded by a tortious taking, were founded upon the statutes of 1789 and 1821. In New-Jersey, the statute regulating the action of replevin, lies for goods taken and wrongfully detained, and it is a close adoption of the English statute law on the subject. Elmer's Dig. 466. When it is said in the books that replevin will not lie for goods taken in execution, the rule is to be taken to be

6 Hill's N. Y. Rep. 20.

under distinct demises from year to year, from the same landlord, the whole period is to be regarded as one term for the purpose of continuing the right of distress.

*But the object of this work will not permit me to *484 descend into greater detail, and I am obliged to be confined to a general view of the law on the subject of rent, and the remedy to recover it. The contract for rent, and the remedy, are in constant use and application; and in the cities and large towns there are few branches of the law that affect more sensibly the interests of every class of the people. The law may be deemed rather prompt and strict with respect to the interests of the landlord, but I am inclined to think it is a necessary provision, and one dictated by sound policy. It is best for the tenant that he should feel the constant necessity of early and punctual performance of his contract. It stimulates to industry, economy, temperance and wakeful vigilance; and it would tend to check the growth and prosperity of our cities, if the law did not afford the land- *485 lords a speedy and effectual security for their rents, against the negligence, extravagance and frauds of tenants. It is that security which encourages moneyed men to employ their capital in useful and elegant improvements. If they were driven in every case to the slow process of a suit at law for their rent, it would lead to vexatious and countless law-suits, and be, in many respects, detrimental to the public welfare.

limited to cases in which the writ of replevin is sued out by the defendant in the execution. The taking of the goods of a stranger, is a trespass, and replevin lies, as the cases above cited show, when goods are tortiously taken, and therefore goods taken in execution may be replevied by a stranger to it. Winnard v. Foster, 2 Lutro. 1191. Rooke's Case, 5 Co. 99. Platt, J., in Clark v. Skinner, 20 Johns. Rep. 467. Dunham v. Wyckoff, 3 Wendell's Rep. 280. L. & P. Company v. Holborn, 2 Blackf. Ind. Rep. 267. Brewster v. Curtis, 3 Fairfield, 51. American Jurist, No. 23. art. 4, where this point is elaborately and ably discussed. In Virginia, by statute, in 1823, the writ of replevin is confined to the cases of distress for rent. 1 Robinson's Pr. 408. This is also the case in Mississippi. Wheelock v. Cozzens, 6 Howard, 279.

The modern regulations on the subject of distress for rent are founded on the statutes of 2 W. & M. c. 5; 8 Anne, c. 14; 4 Geo. II. c. 28; 11 Geo. II. c. 19; and those statutes have been re-enacted, with some improvements, in New-York, and doubtless form the basis of our American law on the subject of distress for rent, in all those states where that remedy prevails. The statute of 11 Geo. II. c. 19, seems to have been, for instance, very strictly adopted and followed in Pensylvania and Maryland. 12 Serg. & Rawle, 218. 7 Harr. & Johns. 372, 373.

LECTURE LIII.

OF THE HISTORY OF THE LAW OF TENURE.

TENURE is inseparable from the idea of property in land, according to the theory of the English law. All the land in England is held mediately or immediately of the king. There are no lands to which the term tenure does not strictly apply, nor any proprietor of land, except the king, who are not legally tenants. To express the highest possible interest that a subject can have in land, the English law uses the terms fee-simple, or a tenancy in fee, and supposes that some other person retains the absolute and ultimate right. The king is, by fiction of law, the great lord paramount, and supreme proprietor of all the lands in the kingdom, and for which he is not bound by services to any superior. Prædium Domini Regis est directum Dominium, cujus nullus author est nisi Deus. So thoroughly does this notion of tenure pervade the common law doctrine of real property, that the king cannot grant land to which the reservation of tenure is not annexed, though he should even declare, in express words, the grant be absque aliquo inde reddendo. Sir Henry Spelman defines a feud to be usus fructus rei immobilis sub conditione

fidei; vel jus utendi prædio alieno. The vassal took *488 the profits, but the property of the soil remained in the lord, and the seignory of the lord and the vassal's feud made together, saith Spelman, that "absolute estate of inheritance, which the feudists, in time of old, called allo

dium."

138.

Co. Litt. 1. b. 1. a. 2 Blacks. Com. 105.

Bro. tit. Tenures, 3. 52. 6 Co. 6. b. 9 Co. 123. a.

Wright on Tenures, 137,

• Treatise of Feuds and Tenures by Knight Service, c. 1. Feodum.

Glossarium Voce