for natural repose; and it has been held, that a horse which a man was leading only, might be distrained". 5.- Goods in the custody of the law.] Goods in the custody of the law, as things distrained damage feasant, or taken in execution, or under an attachment, cannot be distrained for rent in arrears. Where corn, while growing, was seized under a fi. fa., and after it was cut, but before it was fit to be taken away the landlord distrained it for the rent; it was held, that the distress was illegal, as the corn was not left an unreasonable time on the premises ". It has been held, however, that if goods remain on demised premises after a fictitious bill of sale made of them under an execution, they are liable to be distrained as before e. And where a sheriff's officer executed a writ of fi. fa. by going to the house and informing the debtor he came to levy on his goods, and laying his hand on a table and saying "I take this table," and then locked up his warrant in the table drawer, took the key, and went away, without leaving any person in possession, and after the fi. fa. was returnable, but not continued, the landlord distrained the goods for rent; held, that the sheriff could not maintain trespass against him; for, by quitting the premises after the seizure, and leaving no person in the possession of the goods, he relinquished the possession, and the goods were no longer in the custody of the law. 6.-Fixtures.] Things annexed to the freehold, as furnaces, mill-stones, or chimney-pieces, cannot be distrained, because they cannot be taken away without doing injury to the freehold, which the law will not allow 8; and his privilege extends to things which the tenant will not be allowed to remove from the Things in the custody of the law cannot be distrained. Sheaves of corn, cocks of hay, and growing crops may be distrained. 1 premises, by reason of their being considered as annexed to 7.-Corn and growing crops.] A distress being considered at common law merely as a pledge, things were held not to be distrainable which could not be restored in the same plight as they were when taken, therefore cocks and sheaves of corn were not distrainable. But by 2 W. & M. c. 5. s. 3, "sheaves or cocks of corn, or loose corn and hay lying upon any part of the land charged with the rent, may be seized, secured, and locked up in the place where found, in the nature of a distress, until replevied or sold; but the same must not be removed to the damage of the owner from such place." d And as growing corn was considered part of the freehold, it could not be distrained at common law, but by 11 Geo. 2. c. 19. s. 8, the landlord may distrain for arrears of rent, all sorts of corn and grass, hops, roots, fruits, pulse, or other product whatsoever, growing upon any part of the estate demised, and may cut, carry, and lay up the same when ripe, in barns on the premises, or if there be no barn or proper place on the premises, then in any other place as near as may be; and in a convenient time appraise and dispose of the same towards satisfaction of the rent and expenses; the appraisement to be made when cut and gathered, and not before. Sec. 9 provides that if the tenant shall pay or tender the arrears of rent and costs before the corn is cut, the distress shall cease, &c. The words other product a Bro. Ab. tit. Dist. pl. 23. Niblet v. Smith, 4 T. R. 594. Duck v. Braddyll, M'Clel. 217. 13 Price, 459. Sec. 2. post, 810, requires the goods distrained to be sold at the ex piration of five days, if not replevied. "It seems that under this statute the landlord has no option, but must sell at the end of five days." Per Parke B., in Pigott v. Birtles, 1 M. & Wels. 448. in the above enactment have been held to apply only to other product of a nature similar to the things specified, that is to say, product to which the process of ripening and being cut, gathered, made and laid up when ripe, is incidental, therefore trees and shrubs growing in a nursery ground are not distrainable within the statute a. Growing crops may be considered in the nature of goods and chattels, as they may be distrained in the same manner as articles of the latter description". But where A. granted an annuity to B., charged on certain premises, and empowered him to distrain for the arrears, and "to detain, manage, sell, and dispose of the distresses in the same manner in all respects as distresses for rents reserved upon leases for years, and as if the said annuity was a rent reserved upon a lease for years;" the court thought that these words did not empower the grantee to distrain growing crops, but only conferred on him the powers given by 2 W. & M. c. 5. s. 3.c Growing crops cannot be sold before they are riped. Where, however, a landlord distrained and sold growing crops before they were cut, and it appeared that they had fetched as much as if sold at the proper time, and the arrears of rent exceeded what they sold for; it was held, in trover by the tenant, that he was entitled to nominal damages only e. Where a sheriff took corn in the blade under a fi. fa., and sold it before the rent was due, it was held that he was not liable to account to the landlord of the defendant, under the statute 8 Anne, for rent accruing subsequently to the levy and sale, although he had given notice, and though the corn was not removed from the premises until long afterwards. * Clark v. Gaskarth, 8 Taunt. 431. 2 Moore, 491, recognised in Clarke r. Calvert, 3 Moore, 114. Glover v. Coles, 1 Bing. 6. 7 Moore, 231. • Miller v. Green, in error, 2 C. & J. 143. 2 Tyr. 1. 8 Bing. 92. 1 M. & Scott, 199. the barns, &c., of the farm, for a certain time after the lease is expired, and he has quitted the premises, is good; and the landlord may distrain the corn so left, for rent in arrear, after six months have expired from the determination of the term. Beavan v. Delahay, 1 H. Black. 5. S. P. Lewis v. Harris, 1 H. Black. 7. n. Owen v. Leigh, 3 B. & A. 470. * Proudlove v. Twemlow, 1 C. & M. 326. A custom that a tenant may leave his away-going crop in 274. f Gwillim v. Barker, 1 Price, By 56 Geo. III. c. 50. s. 6, landlords are not to distrain for rent on purchasers of crops severed from the soil, or other things sold subject to husbandry agreements, nor on stock or implements employed, under the provisions of the act. A distress must be made on the premises from which the rent issues, unless when removed to prevent a distress. SECTION V. IN WHAT PLACE A DISTRESS SHOULD BE MADE. THE distress must in general be made on the premises out of which the rent issues; therefore, where there was a demise of a wharf, together with all ways, paths, passages, easements, and appurtenances whatsoever to the said wharf belonging; it was held that the landlord could not distrain barges lying opposite to the wharf between high and low water mark, and attached by ropes to the wharf, although the verdict of a jury found that the exclusive use of the land between high and low water mark, as well when covered with water as when dry, was demised as appurtenant to the wharf, for the accommodation of the tenants of the wharf; but they also found that the land itself between high and low water mark was not demised. "If," said Lord Tenterden, C. J.," the meaning of the finding of the jury be that the use and enjoyment of the land between high and low water mark passed as appurtenant, that would be a mere privilege or easement, and the rent could not issue out of that; the landlord, therefore, could not distrain there for rent issuing out of land in respect of which the easement or privilege had its existence a. If, however, the landlord enters on the premises to distrain, and he has a view of cattle or other chattels thereon, and the tenant removes them to prevent a distress, the landlord may follow them and distrain them out of the premises; but if the beasts go off the land of themselves before they are seen by the landlord, he cannot distrain them afterwards b; and it is said that if the owner drive beasts damage feasant out of the soil, even with a view to evade a distres, they cannot be distrained, Buszard v. Capel, 8 B. & C. 141. 2 M. & R. 197, in error. 6 Bing. 150. 3 M. & P. 480, overruling S. C. 4 Bing. 137. 12 Moore, 339. b Co. Litt. 161. a. Per Tindal, C. J., in Rand v. Vaughan, post, 804. n. because the beasts must be damage feasant at the time of the distress a. different counties. Where there are separate demises, there ought to be separate distresses on the several premises subject to distinct rents b. Where, however, lands lying in different counties are held under Lands in one demise at one entire rent, a distress may be taken in either county for the whole rent in arrear, and chasing a distress over is a continuance of the taking; but where the counties do not adjoin, a distress cannot be chased from one county into the other. If a rent-charge issue out of land in the possession of many tenants, a distress may be taken upon the possession of one for the whole rent, for it issues out of each part d. SECTION VI. IN CASE OF FRAUDULENT REMOVAL. rent becomes due, goods be lently removed to distress, fraudu By stat. 11 Geo. II. c. 19. s. 1, "if lessee for life, term of If after the years, at will, or otherwise, of lands or tenements, upon the demise whereof any rents are reserved, shall fraudulently or clandestinely carry off his goods from such demised premises, to prevent a distress, the lessor, or any person empowered by him, may, within thirty days after carrying off, distrain such goods, wherever found, for the rent arrear, and sell or dispose of the same, as if distrained on the premises." By sec. 2, "no landlord or other person, &c., shall seize such goods or chattels which shall be sold, bona fide and for a valuable consideration, before such seizure made, to any person not privy to such fraud." By sec. 8, "the landlord may distrain any cattle or stock of the tenant depasturing on any common, appendant or appurtenant, or any way belonging to the premises demised." prevent a the landlord may distrain them wherever he can find them. |