As tenants in common are obliged to avow separately, they Tenants in should make several distresses 2. If a tenant to two tenants in common receive a notice from one not to pay the whole rent to the other, and afterwards do so, the one who gave the notice may distrain for his share b. Where land was demised by four persons, (whose original title did not appear,) at one entire rent, to be divided and paid separately, in equal portions; and one of the four distrained upon the tenant for her own share of the rent; held, that the distress was regular, for whatever might have been the interest of the landlords, as between themselves, as between them and the terre-tenant, they were tenants in common, and entitled each to a separate distress. common. ceners. tenants. One of several coheirs in gavelkind may distrain for rent due Coparto all, without the authority of his coheirs. Coparceners being considered but as one heir in law, must join in making a distress, but after partition they may make several distresses ". One joint tenant may distrain alone, but then he must avow in Joint his own right, and as bailiff to the other; and if not interdicted by the others, he may appoint a bailiff to distrain for rent due to all. As a tenant by the courtesy has an estate of free- Tenant hold, he is in contemplation of law a reversioner, in all lands of by the the wife leased for years or life, and therefore may distrain of common right. If the wife's estate be but a rent of inheritance, he may also distrain for it1. Tenants by elegit, statute staple, or statute merchant may distrain. A mortgagor may distrain under a lease by deed granted by himself after the mortgage, by virtue of the estoppel, but not for rent due under a lease granted previous to the mortgage, for the privity of estate is destroyed by the mort courtesy. Tenants cution. under exe Mortgagor and mort. gagee. Annuitants. Husbands. Tenants pur autre vie. Executors and admi. nistrators. gage. A mortgagee may distrain after giving notice of the mortgage to the tenant in possession, under a lease prior to the mortgage. But it is doubtful whether he may distrain for rent due on a lease given after the mortgage, without his privity e. An annuitant may distrain for arrears, though the term be vested in himself, to secure the payment d. Husbands seised in right of their wives might at common law distrain for rent due out of land in which the wife had only a chattel interest, but he had no such right in respect of rent arising from a freehold interest in lande, until the 32 Hen. VIII. c. 37. s. 3. enabled husbands seised in right of their wives, in fee, tail, or for life, of any rents or fee-farms, to distrain after the death of their wives for arrears during their lifetime. By section 4, tenants pur autre vie may distrain for arrears during the life and unpaid after the death of the cestui que vie, in like manner as at common law they might have done during his life. At common law executors or administrators could not distrain for arrears incurred in the lifetime of the owner of the rent, but by 32 Hen. VIII. c. 37. s. 1, "the personal representatives of tenants in fee, tail, or for life, of rent-services, rent-charges, rents-seck, and fee-farms, may distrain for the arrears, upon the land charged with the payment, so long as the lands continue in the seisin or possession of the tenant in demesne, who ought to have paid the rent or fee farm, or of some person claiming under him by purchase, gift, or descent." This statute has been held to extend to the executors and administrators of all tenants for life, in cases where even previously they had a remedy by action of debt as well as where they had no such remedy; though it was considered in one case not to extend to cases where the executors had a remedy at common law by actions; and in a recent case it was held not to extend to the executors of a person who, being seised in fee, demised the premises for a term of years, reserving a a Bradley on Dis. 99. b Moss v. Gallimore, Doug. 279. f Hool v. Bell, 1 Ld. Raym. 172. Lambert v. Austin, Cro. Eliz. 332. See Prescott v. Boucher, 3 B. & Ad. 858. Turner v. Lee, Cro. Car. 471. rent, so as to enable the executors to distrain for arrears of rent accrued in the testator's life time a "that it shall be Executors lessor or may distrain for any But the 3 & 4 W. IV. c. 42. s. 37. enacts, lawful for the executors and administrators of landlord to distrain upon the lands demised, for any term, or at will, for the arrearages of rent due to such lessor or landlord in his lifetime, in like manner as the lessor might have done in his lifetime;" and by sec. 38, "such arrearages may be distrained for after the end or determination of such term or lease at will, in the same manner as if such term or lease had not been ended or determined, provided that such distress be made within six calendar months after the determination of such term or lease, and during the continuance of the possession of the tenant from whom such arrears became due; provided also, that all and every the powers and provisions in the several statutes made relating to distresses for rent shall be applicable to the distresses so made as aforesaid." b rent due in time of the testator, the life and within six months after the determination of a term. manors and common A lord of a manor may of common right distrain for his Lords of copyhold rents. If by a custom the lord is precluded from turning cattle on the common during a certain season of the ers. year, a commoner may distrain the lord's cattle which are turned on during that timed. In case of an absolutely stinted common, in point of number, one commoner may distrain the supernumerary cattle of another; but not if an admeasurement is necessary, as where the stint has relation to the quantity of the commoner's land. Wherever there is a colour of right for turning cattle on a common, a commoner cannot distrain, because it would be judging for himself in a case which depends on a more competent inquiry. But where cattle are * Prescott r. Boucher, 3 B. & Ad. 849. Jones v. Jones, id. 967. See Renven v. Watkin, S. N. P. 668 Powell r. Killick, id. Meriton r. Gilbee, 8 Taunt. 159. Martin r. Burton, 1 B. & B. 279. Where the lessee of lands dies before the expiration of the term, and his administrator continues in possession during the remainder, and after the expiration of it, a distress may be taken for rent due for the whole term. Braithwaite v. Cooksey, 1 H. b 3 & 4 W. IV. c. 42. s. 37, 38. Laugher v. Humphrey, Cro. di Roll. Ab. 505. turned on the common without any pretence of right, the commoner may distrain thema. The general rule, however, that one commoner cannot distrain the cattle of another may be superseded by a special agreement; as where A., being possessed of a quantity of land in a common field, and having a right of common over the whole field, and B. having also a right of common over the whole field, they entered into an agreement, for their mutual advantage and convenience, not to exercise their respective rights for a certain term of years, and each party covenanted to that effect; during the term the cattle of B. came upon the land of A.; it was held, that A. might distrain them damage feasant; for, by the operation of the agreement, B. stood in the situation of a stranger with regard to A.b tender of the rent will prevent a distress. SECTION III. HOW A DISTRESS MAY BE AVOIDED. Payment or In general the landlord may distrain whenever the rent is in arrear, but a tender of the rent at a proper time and place, even though he refuse to take it, will supersede his power of distraining. A distress made after a tender of the arrears is illegal; and if a tender be made even after the landlord has distrained, but before the distress is impounded, a subsequent removal of the distress will subject the landlord to an action of trespass a. But a tender after the distress is impounded is insufficient, because it is then in the custody of the law. Though the distress be made by a broker, a tender of the rent and costs to the landlord, or the party to whom the rent is due, will be sufficient. The landlord's privilege of distraining a Hall v. Harding, 1 Black. 673. b Whiteman v. King, 2 H. Bl. 4. d Vertue v. Beasley, 1 M. & Rob. 21. e Firth v. Purvis, 5 T. R. 432. Where cattle, distrained damage feasant, were in a private pound, and the distrainer admitted they were about to be forwarded to a public pound; held, that a tender of amends made, while they were in the private pound, was not too late. Browne v. Powell, 4 Bing. 230. 12 Moore, 454. f Smith v. Goodwin, 4 B. & Ad. 413. Or if the tender be made to may be waived by contract; as where the tenant with the privity of landlord sold by auction a right of eatage of pasture, which the plaintiff purchased, and the proceeds were paid to the landlord; held, Parke, B., dissentiente, that a contract by the landlord might be implied not to distrain cattle put on the land to consume the eatage, and that a distress of the plaintiff's cattle, for rent accrued previous to the sale, was unlawful a. But where the plaintiff, being about to take an apartment of the defendant's tenant, was promised by the defendant that so long as he paid the rent to the tenant, his property should be safe; and having paid part, and tendered the residue, the defendant without notice of the tender, distrained his goods for rent due from the tenant; it was held, that his right to distrain was not barred by his promise b. bond or bill of ex change will prive the landlord of his right to distrain. not de As distress is the highest remedy known to the law, taking Taking a a bond or bill of exchange as a security for the rent, will not deprive the landlord of his right to distrain; for it cannot operate as an extinguishment of the rent until payment. Where the plaintiff gave a note of hand for rent in arrear, and took a receipt for it when paid, the defendant afterwards distrained for the rent; the plaintiff brought trespass; and it was holden, that notwithstanding this note, the defendant might distrain, for it is no alteration of the debt until payment d. And if a note be given under an agreement that it should operate as a suspension of the right of distress, in order to give it that effect, such agreement must be specially pleaded in bar to the avowry, as well as the fact that the note was given on account of the rente. the broker, it is good; and if he takes more than the sum he is entitled to, he is subject to a penalty of treble the amount unlawfully charged. 57 G. III. c. 39. It has been held that a tender of amends on a distress for damage feasant, cannot be made to the bailiff of the avowant. Pilkington v. Hastings, Cro. Eliz. 813. 5 Co. 76. But in a recent case, where the distrainer's wife had been in the usual habit of acting as his agent in such matters, and made a distress of cattle damage feasant in his absence, a ten der of amends to her was held suffi- a Horsford v. Webster, 1 C. M. & b Welsh v. Rose, 6 Bing. 638. Roll. Ab. tit. Extinguishment. Drake v. Mitchell, 3 East, 251. But a judgment obtained on a bond is an extinguishment of the rent. B. N. P. 182. d B. N. P. 182. Davis r. Gyde, 4 Nev. & M. 462. 1 H. & W. 50. e Davis v. Gyde, supra. |