"duly answered or paid, for the space of three years, within "the space of twenty years before the 23d day of January, "1731, or shall be thereafter created, as in case of rent "reserved upon lease." In Bradbury v. Wright, Doug. 624. the court were of opinion, that a rent reserved on a grant in fee (3), made after the statute of quia emptores, and before the 4 Geo. 2. c. 28. was in its nature a rent-seck, and that it could not be distrained for, except under the preceding statute; in which case the distrainor, in his avowry, ought to have alleged, that the rent had been duly answered or paid, for the space of three years, within the space, of twenty years, before the first day of the session of parliament in which this statute was made. By stat. 11 Geo. 2. c. 19. s. 18. “Landlords may distrain "for double rent, upon tenants who do not deliver up "possession after having given notice of their intention to "quit, during all the time such tenants continue in pos"session." Where there are rents for which the party cannot distrain, although he may have an assize, yet remedy may be had for such rents in a court of equity". n Per Comyns B. Exch. Trin. 5 and 6 Geo. 2. MS. inon law, and not being a rent-seck, it cannot be distrained for under the operation of this statute. v. Cooper, C. B. 2 Wils. 375.; but in such case an action of debt is maintainable, Newcomb v. Harvey, Carth. 161. (3) A rent of this kind prior to the statute of quia emptores, would have been properly denominated a fee-farm rent. The word fec-farm imports every rent or service, whatever the quantum may be, which is reserved on a grant in fee. It is not properly applicable to any rents, except rent-service. Hence, since the statute of quia emptores, the granting in the fee-farm, except by the king, is become impracticable; for, by the operation of that statute, the grantor parting with the fee is without any reversion, and without a reversion there cannot be a rent-service*. But a grant in fee, reserving a perpetual rent, with a power of distress, will be as good as a rent-charget. And it seems, that if such a rent were created at this day, without a power of distress, as it must be considered as a rent-seck, it would be distrainable for under the before-mentioned statute, 4 G. 2. c. 28. s. 5. * Litt, sec. 216. + Harg. 1 Inst. 143. b. n. 5, III. Of the Things which may, and the Things which may not, be distrained. 1. For Rent Arrear. Ir may be laid down as a general proposition, that all moveable chattels of the tenant may be distrained for rent arrear, if they are found upon the land demised°. If the cattle of a stranger are trespassers on the land of the tenant, the lord may distrain them, although the stranger make fresh suit?, and although the cattle be not levant and couchants. But if the cattle of their own accord leave the land, the lord cannot distrain them'. So a lessor cannot distrain a stranger's cattle which escape from a close belonging to a stranger, into the land where the rent issues, through defect of fences, which either the lessors or his tenant' was bound to repair (4). If the estate of tenant at will be determined either by his own death", or by the act of the landlord, he or his execu tors may reap the corn sown by him. And therefore, such corn, though purchased by another person, cannot be distrained (in case of the death of the tenant at will) for rent due from a subsequent tenant. With respect to those things which by law are privileged o Com. Dig, Distress, B. 1. and 4 T. R. 567. S. P. per Ld. Kenyon C. J. in Gorton v. Falkner. p 7 H. 7. 1. b. 2. a. ¶ 15 H. 7. 17. b. r 11 H. 7. 4. a. $ 2 Leon. 7. t Dyer, 317. b. 318. a. u Eaton v. Southby, Willes, 131. 66 (4) There is a difference between a lord distraining within his seignory, and a landlord distraining for rent reserved on his own lease; for the lord has nothing to do with the land or the fences, and so it is not material to him whether the fences are repaired or not; but it is otherwise of a landlord; for he himself ought to repair, or to provide that his tenant repairs them, else he would take advantage of his own wrong. And this diversity seems to be warranted by the books, Dy. 317, 318. 22 Edw, 4. 49 b. 7 H. 7. 1. 10 H. 7. 21. 15 H. 7. 17. But if the cattle escape into the land without any defect of the fences, or where the tenant of the land in which they are distrained, is not bound to repair the fences, through the defect of which the cattle escape and are distrained, it is immaterial to the lord or landlord, whether they are levant or couchant or not." Per Saunders, in Poole v. Longueville, 2 Saund. 289. See also Kemp v. Cruwes, 2 Lutw, 1580. from distress, it may be observed that some are privileged absolutely, and some conditionally. In the first class may be numbered, 1. Animals, feræ naturæ, whereof a valuable property not in any person; as bucks, does, &c. Deer kept within an inclosure do not fall within this class, for they may be distrained'. 2. Such things as cannot be restored to the owner in the same plight and condition as they were in at the time of taking them. This exemption proceeds on the ground of the distress having been considered, at common law, merely as a pledge'; and, for this reason, sheaves and shocks of corn were not distrainable; but now, by stat. 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, se"cured, and locked up in the place where found, in the "nature of a distress, until replevied; but the same must "not be removed to the damage of the owner from such "place." 3. Things fixed to the freehold; as furnaces, cauldrons, the doors or windows of a house, or the like. At common law, corn, growing could not be distrained, because it adhered to the freehold. But now, by stat. 11 Geo. 2. c. 19. s. 8. "Landlords, or their bailiffs, or other persons empowered by them, may distrain corn, grass, or "other product, growing on any part of the land demised." 4. Things delivered to a person exercising a trade, to be wrought or manufactured in the way of his trade, are not distrainable, as cloth delivered to a tailor. So a horse standing in a smith's shop, for the purpose of being shod, or in a common inn (5), cannot be distrained, because it must be presumed that such things so found belong to strangers. Davies v. Powell, Willes, 47. y 1 lust. 47. 3. z Wilson v. Dacket, 2 Mod. 61. a 1 Inst. 47. a. (5) It seems, that the privilege of a common inn does not extend to a livery stable. See Francis v. Wyatt, 1 Bl. R. 483. and 9 Burr. 1498. where the question was, "whether a carriage standing in the yard of a livery stable was distrainable for rent due to the landlord from the keeper of the livery stable?" The case was twice argued; but the court appearing to be strongly inclined in favour of the distress, the owner of the carriage declined bringing the question to a third argument, which had been directed by the court. 5. Goods distrained, damage feasant; for they are in the custody of the law (6). Among those things which are privileged from distress, conditionally, may be numbered, 1. Beasts of the plough, which are exempt, if there be a sufficient distress besides on the land whence the rent is sues (7). 2. Implements of trade, as a stocking frame, or a loom, if they are in actual use, and there is a sufficient distress besides. 3. Other things in actual use, as a horse whereon a person is riding, or an ax in the hands of a person cutting wood, &c. These two last instances of exemption proceed on this ground, that if in such cases a power of distress were given by law, the exercise of it would frequently lead to a breach of the peace. With respect to those things which may be distrained damage feasant, it may be laid down as a general rule, that all chattels trespassing on the land may be distrained damage feasant. The law, indeed, has extended this principle so far as to permit A. to distrain the cattle of B. damage feasant', in the close of A., although they were put there by a stranger, without the privity of B. It is to be observed, however, that a horse whereon a man is riding, cannot be distrained damage feasant*; for the same exemption is allowed here d1 Inst. 47. a. e 1 lust. 47. a. b. 161. a. f Simpson v. Hartopp, Willes, 512. Watts v. Davies, Scacc. H. 20 G. 3. MS. S. P. g Gorton v. Falkner, 4 T. R. 565. h1 Inst. 47. a. i1 Rol. Abr. 665. 1. 25. k Storey v. Robinson, 6 T. R. 138. per Denison J. in Collins y. Renison, Say. R. 139. (6) It seems that the same rule holds with respect to goods taken in execution, and for the same reason. Eaton v. Southby, Willes, 131. (7) But beasts of the plough may be distrained for the poor rates, although there are other distrainable goods on the premises more than sufficient to answer the value of the demand. Hutchins v. Chambers, 1 Burr. 579. This decision proceeded on the ground, that a seizure under the stat. 43 Eliz. c. 2., and similar acts, resembled a common law distress only in being replevisable; and that it was in other respects analogous to a common law execution, under which any goods of the debtor may be seized. as in cases of distress for rent arrear, and for the same reason; lest by the permission of such distress a breach of the peace should ensue. By stat. 7 Ann. c. 12. s. 3. it is enacted and declared, that process of distress against the goods of any ambassador or other public minister of a foreign state, or of their domestic servants, shall be void. IV. Who may distrain. 1. By Statute. By stat. 7 H. 8. c. 4. it is enacted', "That "the recoverors of manors, lands, and advowsons, their "heirs, and assigns, may distrain for rents, services, and "customs, due and unpaid, and make avowry and justify "the same, and have like remedy for recovering them as "the recoverees might have done or had, although the recoverors were never seised thereof." 66 By stat. 32 H. 8. c. 37. s. 1. " The personal representa❝tives 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 provides a remedy where the testator dies seised of a rent to him and his heirs, or for life, and where by his death there was not any remedy for the executor at the common law; hence, executor of tenant for life of a rent-charge may distrain for rent arrear under this statute; but where the executor has remedy by the common law by action of debt, as in the case of an executor of tenant for years of a rent charge, if he live so long, this statute does not apply". Neither does this statute extend to copyhold rents. By s. 3." Husbands seised in right of their wives, in fee, "tail, or for life, of any rents or fee-farms, may distrain, "after the death of their wives, for arrears due in their life "time." And by s. 4. " Tenants pur auter vie, of rents and 1 See 1 Inst. 104. b. m Hool v. Bell, 1 Ld. Raym. 172. n Turner v. Lee, Cro. Car. 471. |