themselves, together with damages for the detention, and full costs; the jury therefore should assess the value of each article separately, to enable the plaintiff to recover the value of such articles as cannot be returned a. Until recently this form of action was very seldom resorted to, because the defendant might wage his law; but, since 3 & 4 W. IV. c. 42, s. 13, whereby wager of law is abolished, it has come into more frequent use. a * Cheney's Case, 10 Co. 119. b. See Herbert E. Waters, Salk. 286, CHAPTER X. DISTRESS. PAGE i. Of the nature of distress and the causes for which it may be OF THE NATURE OF A DISTRESS, AND THE CAUSES FOR WHICH IT MAY BE MADE. DISTRESS is the taking of a personal chattel out of the possession of a wrong-doer into the hands of the party grieved, as a pledge for redressing an injury, the performance of a duty, or the satisfaction of a demand. By common right a distress may be made for the non-performance of services, as for neglecting to do suit to the lord's court, for heriot service, for amercements in a court leet, for cattle damage-feasant a. So by common law, distresses were incident to every rent-service, and by particular reservation to rent-charges, but not to rentseck, till the statute 4 Geo. II. c. 28. extended the same remedy to all rents alike, and thereby in effect abolished all material distinction between them, so that it may be laid down as a general principle that distress may be taken for any kind of rent in arrear b. There must be a demise at a fixed rent to authorize a dis tress. A demise may be implied from payment of rent, so as to enable the land lord to distrain. A remedy by distress is also provided, by various statutes, for penalties and the non-performance of duties, &c., which the limited design of this work will not permit to be more particularly noticed. It has been stated that a distress may be taken for any kind of rent in arrear; it may be remarked, however, that a distress cannot be made unless there be an actual demise at a fixed ascertained rent. Therefore, where a tenant held premises under an agreement for a future lease, and no lease had been executed, or rent subsequently paid, it was held that the landlord could not distrain for rent, his remedy was by action for use and occupation. "There can be no distress," said Abbott, C. J., "unless there be a contract for an actual demise at a specific sum." So, where a lease of tithes and land was granted at an entire rent for both, and the lease as to the tithes was void, it not being under seal, it was held that a distress for the rent was unlawful, there being no distinct rent reserved on the land b. Any act, however, of the tenant which amounts to a recognition of a tenancy, and admits a liability to pay a certain rent, will enable the owner of the premises to distrain for rent in arrear, though there be no express demise. As where the tenant occupied premises under an agreement for a lease, which was not executed, and paid rent for two years; it was held that he was liable to be distrained for arrears of rent due for the third year, at the rate previously paid, the quantum of rent not being otherwise ascertained. So, where a tenant who had entered the premises under an agreement for a lease, admitted a charge for half a year's rent in an account between him and his landlord; it was held that this constituted him a tenant from year to year, and liable to be distrained d. But where a tenant en part of the demised premises which a Dunk v. Hunter, 5 B. & A. 148. See Neale v. Mackenzie, 1 Gale, 119. 2 C. M. & R. 84. Gardiner v. Williamson, 2 B. & Ad. 336. Knight v. Bennett, 3 Bing. 361. 11 Moore, 222. d Cox v. Bent, 5 Bing. 185. 2 M. & P. 281. tered under an agreement for a lease at a certain rent, the landlord undertaking to complete certain buildings, and after an occupation of several years, on being called on for the rent, he said he was ready to pay upon the buildings being completed; it was held, that as no rent had been paid, a demise at a certain rent could not be implied, so as to entitle the landlord to distrain 2. SECTION II. WHO MAY DISTRAIN. But having the reversion only, can distrain. A PERSON seised in fee or possessed of a term for years Persons who has granted out or underleased the premises for a shorter period than his own interest, with a reservation of rent, may distrain for rent in arrear without any express provision b. if a person transfers all his interest in the premises to another, so that he has not the reversion, although he reserves a rent, he cannot distrain for it, unless he reserves to himself a power of distraining, his only remedy in such case being by an action on the contract. Therefore where A., the lessee of two farms, agreed with B. that he should have them during the leases; B. to remain tenant to A. during that period, and at the leaving the farms, B. was to be paid for the fallows and dung; B. took possession, and paid one year's rent to A., who afterwards distrained for rent in arrear; held, that he was not entitled so to do, as the agreement operated as an absolute assignment of all 4.'s interest in the farms d. So, where a lessee, whose term was to expire on the 11th of November, let the premises on the 11th of the preceding September to the plaintiff, who was to * Reynart v. Porter, 7 Bing. 451. 5 M. & P. 370. Where a landlord's receiver allowed the tenant to make a deduction in respect of a payment for land tax every year for seventeen years, greater than the landlord was liable to pay, the landlord knowing, or having the means of knowing, all the facts; held, that he could not distrain for the amount erroneously allowed, though the receipt given every year showed the amount paid and the amount de- b Bac. Ab. 196. Litt. S. 214. Smith v. Mapleback, 1 T. R. d Parmenter v. Webber, 2 Moore, hold them until the 11th of November, on paying down an immediate rent; it was held that the lessee could not distrain the goods, as the terms of the letting amounted to a lease, by which the whole of the lessee's interest had passed to the plaintiff. A tenant from year to year underletting from year to year has a reversion, which enables him to distrain. Where a person entered upon premises subject to the approbation of the landlord, and afterwards agreed to pay an advanced rent, as well for the time he had been in possession as for the future; it was held that the landlord might distrain for the advanced rent accrued before the agreement, as well for what accrued afterwards, such agreement giving him the same power by relation to his tenant's first entry into possession, as it did to recover his rent in future c. But if the landlord does any act which rebuts the presumption of an existing tenancy, as if he treats the occupier as a trespasser, by bringing ejectment against him, he cannot afterwards distrain him for rent; and if the tenant holds over after having received notice to quit from the landlord, he is not liable to a distress without some evidence of a renewal of the tenancy; for a mere holding over does not make him a tenant upon the old terms, so as to confer on the landlord the right of distress; his remedy in such case is by an action for double value. But, if the tenant holds over after having given the landlord notice to quit, the latter may distrain for double rent during all the time that the tenant continues in possession. A weekly tenant, however, is not liable to be distrained for double rent, for holding over after notice; for he does not come within the statutes. a Preece v. Corrie, supra. 493. M'Leish r. Tate, Cowp. 781. Bridges v. Smith, 5 Bing. 410. 2 M. & R. 740. e Jenner v. Clegg, 1 M. & Rob. 213. Confirmed by the Court of Exchequer. See ante, 729. But see Zouch d. Ward v. Willingale, 1 H. Bl. 311; where a distress under such circumstances f By 11 G. II. c. 19, s. 18, this statute applies only to cases where the tenant has the power of deter. mining the tenancy, and has given a valid notice. Johnstone v. Hurdlestone, 4 B. & C. 922, ante, 732. Sullivan r. Bishop, 2 C. & P. 359. |