made before a justice of the peace of a reasonable ground to suspect that such goods are therein; and the same may be taken and seized for the arrears of rent, as if they had been in an open place." SECTION IX. HOW A DISTRESS SHOULD BE DISPOSEd of. 1. Impounding a distress. 2. Sale of a distress..... PAGE 1.-Impounding a distress.] Ar common law, the party distraining goods might impound them in any place that he thought Where a should be distress Costs of impound. ing. proper. But by 1 & 2 Philip & Mary, c. 12. s. 1, no distress impounded. of cattle is to be driven out of the hundred, rape, wapentake, or lathe where the same is taken, except it be to a pound overt, within the same shire, nor above three miles from the place where the same is taken; nor impounded in several places, whereby the owner may be constrained to sue several replevins; on pain of forfeiting to the party grieved one hundred shillings, and treble damages; and by sec. 2, no person shall take for keeping in pound or impounding any distress above four pence for any one whole distress; on pain of forfeiting five pounds to the party grieved. It has been held, under this statute, that where lands lying in two adjacent counties were let under one demise, at one entire rent, and the landlord distrained cattle in both counties for rent, he might chase them all into one county; but not so if the counties were not adjoining b. The offence under this statute for impounding a distress in a wrong place, or in several places, is but a single offence, though several persons be concerned, and shall be satisfied with one forfeiture. By 11 Geo. II. c. 19. s. 10, persons distraining for rent may impound the distress in any convenient part of the land d. The second section of 1 & 2 P. & M. c. 2. does not apply to a distress impounded on the premises pursuant to the latter statute o. At common law, if living chattels were put into a pound The party * 1 Inst. 106. b Walter v. Rumball, 1 Ld. Raym. 53. 1 Salk. 247. Rex v. Clarke, Cowp. 612. Partridge v. Naylor, Cro. Eliz. 480. Child v. Chamberlain, 5 B. & distraining must supply cattle with provisions. Distress to be sold after five days unless replevied. Notice. overt, the owner at his peril was bound to sustain them; but if put into a private pound, the distrainer was bound at his peril to supply them with provision. But by 5 & 6 W. IV. c. 5, the distrainer is in all cases, where cattle are put into a pound overt, as well as covert, bound to supply them with necessary provisions, the value of which he may recover from the owner. The distrainer cannot work or use the thing distrained, as he has only the custody of it as a pledge; he may, however, milk cows and other milch kine, because it may be necessary to their preservation b. 2.-Sale of a distress.] The distress being considered merely as a pledge, could not a common law be sold; but by 2 W. & M. sess. 1. c. 5. s. 2, it is enacted, "that, where any goods or chattels shall be distrained for any rent reserved and due upon any contract, and the tenant or owner of the goods shall not within five days next after such distress, and notice thereof, with the cause of such taking left at the chief mansion-house, or other most notorious place on the premises charged with the rent, replevy the same, the person distraining may, with the sheriff or under-sheriff of the county, or constable of the hundred, parish, or place, where the distress is taken, cause the distress to be appraised by two sworn appraisers, whom such sheriff, &c., shall swear to appraise them truly, and after such appraisement, may sell the same towards satisfaction of the rent, and the charges of the distress and appraisement, leaving the overplus, if any, in the hands of the sheriff, &c., for the owner's use." c In the notice of the sale of a distress it is not necessary to set forth at what time the rent became due for which the dis a 1 Inst. 4. b Bac. Ab. tit. Dist. (D. 2.) A pound-keeper is bound to receive every thing offered to his custody, and is not answerable whether the thing were legally impounded or not. An action of trespass, therefore, will not lie against him merely for receiving a distress, though the original taking be tortious; but if he goes be yond his duty, and assents to the trespass, it may be a different case. Branding v. Kent, Cowp. 476. C This statute does not affect distresses damage feasant, therefore they remain, as they were at common law, mere pledges, and the sale of them will make the party distraining a trespasser ab initio. Dorton v. Pickup, S. N. P. 674. tress has been made a, nor need the time of taking the goods be expressed therein; for a man may distrain for one cause and justify for another. It has been held, that notice to the tenant was sufficient under this act, the sole object of the statute being that the party should have notice; which object was more effectually attained by a notice given to the party himself, than by a notice left at the mansion-house, or most notorious place on the premises. If goods be distrained for rent, the landlord must wait five whole days, i. e. five times twenty-four hours, before he sells, and if he does not, he is liable to an action. Thus, where a distress was made on Friday at two P.M., and the sale was on the following Wednesday at eleven, A.M., the sale was held to be wrongfuld. The landlord may remain a reasonable time on the premises after the expiration of the five days, for the purpose of appraising and selling the goods distrained. But where one who entered under a warrant of distress for rent in arrear, continued in possession of the goods upon the premises for fifteen days, during the last four of which he was removing the goods, which were afterwards sold under the distress; held, that he was liable in trespass for continuing on the premises and disturbing the plaintiff in the possession of his house after the time allowed by law. The consent of the tenant, it seems, will justify him in remaining on the premises beyond the proper time 8. A tenant, whose standing corn and growing crops have been seized as a distress for rent before they were ripe, cannot maintain an action on the case under the above statute against the landlord or his bailiffs for not selling the same before five days Appraisement of the goods. Expenses. had elapsed after the seizure, as such sale was altogether void *. The statute, though it authorizes a sale after five days, does not take away the right to replevy after that period if the goods be not sold; secus after the sale; for the purchaser is entitled to retain the goods b. Before the goods distrained can be sold, they must be ap praised by two sworn appraisers, of whom the party distraining cannot be one, for he is interested in the transaction d. The appraisers must be sworn before the constable of the parish where the distress is taken, who must attend and swear them before the appraisement is made. A distress sold at the appraised value is intended to have been sold at the best price, since the law relies upon the appraisers having been sworns. It has, however, been held on a count for not selling goods distrained at the best prices, that the plaintiff may give evidence to shew that the goods were allowed to stand in the rain, and that they were improperly allotted h. The expenses of levying a distress for rent for less than twenty pounds, are regulated by 57 Geo. III. c. 93, the second section of which gives justices a summary jurisdiction to administer a remedy to parties aggrieved by extortion. provides that every broker or other person who shall make and levy any distress whatsoever, shall give a copy of his charges a Owen v. Legh, 3 B. & A. 470. and of all the costs and charges of any distress whatsoever, signed by him to the person whose goods shall have been distrained, although the amount of rent demanded shall exceed twenty pounds. It has been held under this section, that a landlord who does not interfere personally in the distress, is not liable for the neglect of the broker employed by him to make the distress in not delivering a copy of the charges of the distressa. SECTION X. SECOND DISTRESS. the first be not suf By 17 Car. II. c. 7, in all cases where the value of the cattle A second distress distrained shall not be found to be of the full value of the may be arrears distrained for, the party to whom such arrears are made if due, his executors or administrators, may distrain again for the said arrears; but a second distress cannot, it seems, be ficient. justified, where there is enough which might have been taken. upon the first, if the distrainer had then thought proper b. If a man, however, seize for the whole sum that is due to him, and only mistake the value of the goods seized, which may be of uncertain or imaginary value, as pictures, jewels, &c., there is no reason why he may not afterwards complete his execution by making a full seizure c. If the plaintiff in replevin be nonsuited, the defendant may again distrain the same goods for rent subsequently accrued, previously to his executing his retorno habendo, without waiving his action against the sureties in the bond d. To a cognizance for rent in arrear; a plea in bar, that the defendant, on a former occasion, made a distress for the same rent, and took goods liable to distress, sufficient to discharge. the rent in arrear and the costs of the distress, and might thereby have paid the arrears of rent, but neglected so to do, and wrongfully made a second distress for the same rent, 1 Hart v. Leach, 1 Mees. & Wels. 560. 2 Gale. Woodf. L. & Ten. 335. 579. Hutchins v. Chambers, 1 Burr. d Hefford v. Alger, 1 Taunt. 218. |