"fee-farms, and their personal representatives, may distrain "on the land charged after the death of cestui que vie, for arrears due in the life time of cestui que vie.”

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A. seised in fee, let to the plaintiff for twenty-one years, and afterwards dying seised of the reversion, the defendant administered, and distrained for half a year's rent due to the intestate, for which he avowed. On demurrer to the avowry, it was objected, that there was not any privity of estate between the administrator and the lessor, and therefore the avowry, which is in the realty, could not be maintained by him. And it was observed, that this was a case out of the stat. of 32 H. 8. c. 37. for that only gives a remedy by way of distress for rents of freehold, and of this opinion the court seemed (8). 1 Inst. 162. a. 4 Rep. 50. Cro Car. 471. Latch. 211. Wade v. Marsh were cited,

One entitled to the separate herbage and feeding of a close, for a certain time, may distrain cattle belonging to the owner of the close, damage feasant there during that time.

If a terre-tenant, holding under two tenants in common', pay the whole rent to one, after notice from the other not to pay it, the tenant in common who gave the notice may distrain for his share.

One tenant in common may take a distress without his companions, and avow solely'.

Grant of rent to testator for years, with a clause of dis tress, that the grantee and his heirs may distraint. Adjudged, that the executor should distrain, and not the heir.

p Renvin v. Watkin, M. 5 G. 2. B. R. MSS.

q Burt v. Moore, 5 T. R. 329.

r Harrison v. Barnby, 5 T. R. 246. s Cro. Eliz. 530.

t Darrel v. Wilson, Cro. Eliz. 644.

(8) But in Powel v. Killick, Middlesex Sittings, M. 25 G. 2, where in trespass for entering plaintiff's house, and carrying away his goods, upon not guilty, defendant gave in evidence that he was executor of A., who was plaintiff's landlord of the house, and that he distrained for rent due to his testator at the time of his death; it was objected for plaintiff that executor was empowered to distrain only by virtue of the stat. 32 H. 8. c. 37., and that that statute extended to the executors and administrators of those persons only, to whom rent-services, rent-charges, rent-seck, or fee farms were due, and that the present case did not fall within either of those descriptions. But Lee C. J. overruled the objection, and said, this was a rent-service, the testator being in his life-time seised in fee, and the plaintiff holding under a tenure which implied fealty, Serjt. Hill's MSS. 14 D, 72, and Bull. N, P. 57. S. Č.

A mortgagee after giving notice of the mortgage to the tenant in possession", under a lease prior to the mortgage, is entitled to such rent as shall be in arrear at the time of notice, and to the rent which accrues afterwards, and may distrain for the same after such notice.

If by a custom the lord is precluded from turning cattle on the common during a certain season of the year, a commoner may distrain the lord's cattle which are turned on during that time.

. 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. Hence, where the right of common was for two sheep for every acre of land in the possession of each commoner, it was holden, that one commoner could not distrain the sheep of another for a surcharge (9).

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 quan tity of land in a common field, and having a right of common over the whole field, and B. having also a right of com. mon 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 holden, 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.

A tenant holding over after the expiration of bis term, cannot distrain the landlord's cattle, which were put on the land by the landlord for the purpose of taking possession. Lessee for years assigns his term, reserving a rent, he

u Moss v. Gallimore, Doug. 278. x 1 Rol. Abr. 405, 406. (A.) pl. 6. y Hall v. Harding, 4 Burr, 2426.

z Whiteman v. King, 2 H. Bl. 4,
a Taunton v. Costar, 7 T. R. 431.

(9) But where cattle are turned on the common without any colour or pretence of right, a commoner may distrain them. Admitted in Hall v. Harding, 4 Burr. 2426. It was said by Bathurst J. and not denied by the rest of the court, that if a man who has a right of common upon the lord's waste, for cattle levant and couchant on his land, surcharge the common, the lord cannot for that cause listrain, for the lord cannot judge thereaf, Anor 3 Wils. 126,

cannot distrain for such rent arrear at common law; because he has not any reversion; nor can he distrain for it under stat. 4 Geo. 2. c. 28. s. 5. as a rent-seck; because a rentseck cannot issue out of a term for years; but he may maintain an action of debt.

V. Of the Time at which a Distress may be taken.

As rent is not due, until the last minute of the natural day, on which it is reserved, it follows, that a distress for rent arrear cannot be made on that day (10). Hence, at common law, if a lease was made at Michaelmas, for a year, reserving rent on the feasts of the Annunciation and St. Michael the Archangel, the lessor was deprived of his remedy by distress for the rent due at Michaelmas; because he could not distrain after the expiration of the term. But now by stat. 8 Ann. c. 14. s. 6. "Any person, having any rent "in arrear upon any lease for life or lives, or for years of "at will, may distrain for such arrears after the determina"tion of the lease: provided such distress be made within "six calendar months after the determination of such lease, "and during the continuance of such landlord's title or in"terest, and during the possession of the tenant from whom "such arrears became due."

Although this proviso is in terms confined to the possession of the tenants, yet it has been holden, that where the tenant dies before the term expires, and his personal representative continues in possession during the remainder, and after the expiration, of the term, the landlord may distrain within six calendar months after the end of the term for rent due for the whole term.

It may be observed, that a distress for rent arrear can be taken only during the day-time (11); but cattle damage

(10) "One cannot distrain the same day the rent grows due, but it must be the day after." 21 H. 6. 40. Vid. 14. H. 4. 31. Sir M. Hale, MSS. cited by Mr. Hargrave, 1 Inst. 47. b. n. 6,

(11) "Before sun-rising or after sun set, no man may distrain but for damage feasant." Mirrour, c. 2. s. 26.

feasant may be distrained not only in the day-time, but during the night also; otherwise they might escape.

VI. Of the Place where a Distress may be taken.

A DISTRESS for rent-service may be taken in any part of the land holden.

So for a rent charged or reserved upon a lease upon any part of the land out of which the rent issues. And if a house be upon the land demised or charged', a distress may be taken in the house, if the outer door be open (12). For a rent-service or rent-charge issuing out of the land, which lies in different counties, a distress for the whole may be taken in one county. So if a rent-charge issue out of land in the possession of inany tenants, a distress may be taken upon the possession of one for the whole rent, for it issues out of each part'. But where there are separate and distinct demises, there must be separate distresses on the several premises subject to the distinct rents, although the several premises are demised to the same tenant".

i 1 Rol. Abr. 671. 1. 5. k Ib. l. 27. 30.

11 Rol. Abr. 671. 1. 33.

m Rogers v. Birkmire, Str. 1040.

(12) A distress may be in a house through the doors or windows. Com. Dig. tit. Distress. (A. 3.) "If an outward door be open, an inner door may be broken in order to take a distress," per Lord Hardwicke C. J. in Browning v. Dann and others, Ca. Temp. Hardw. 168. "But a padlock put on a barn door cannot be opened by force for the purpose of distraining the corn." per Lord Hardwicke C. J. N. Gates or inclosures cannot be broken open or thrown down to take a distress. 1 Inst. 161. a. By stat. 11 G. 2. c. 19. s. 7. " Any place, in which goods or chattels, frau"dulently or clandestinely conveyed away, are locked up or se"cured, so as to prevent the same from being taken as a distress "for rent arrear, may be broken open and entered in the day-time

by the party distraining; first calling to his assistance the con❝stable or other peace officer of the place, where the goods are "suspected to be concealed; and in case of a dwelling house, oath "being first 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."

By stat. 11 Geo. 2 c. 19. s. 8. "The landlord may dis train any cattle or stock of the tenant, depasturing on any common appendant or appurtenant, or any ways be"longing to the premises demised."

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If the lord come to distrain cattle which he sees then within his fee", and the tenant or any other person, to prevent the lord from distraining, drive the cattle out of the lord's fee into some other place, yet may the lord freshly follow and distrain the cattle; for in judgment of law the distress will be considered as taken within his fee.

A different rule holds with respect to distresses for damage feasant; for if the owner of the beasts chase them out of the soil, even with a view to evade the distress, yet the owner of the soil cannot distrain them; because the beasts must be damage feasant at the time of the distress.

By stat. 11 Geo. 2. c. 19. s. 1. (13). "If lessee for life, "Y. W. or otherwise, of lands or tenements, upon the de"mise whereof any rents are reserved, shall fraudulently or "clandestinely carry off his goods from such demised pre"mises, to prevent a distress, the lessor, or any 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; "provided, before the seizure, such goods have not been “sold, bonâ fide, and for a valuable consideration, to a person not privy to the fraud."

VII. The Manner of disposing of Distresses, and herein of the Sale of Distresses for Rent Arrear.

Ar the common law, the party distraining might have driven the distress from the place where it was taken, into p S. 2. (14).

n Inst. 161. a.
o Ib.

(13) This section is copied from the second section of the fourteenth chapter of the 8th of Ann, and differs from it only as to the time allowed for the seizing the goods after the carrying off; the statute of Ann allowing only five, and this statute thirty days.

(14) This section is copied from the 3d of the 8 Ann, c. 14. with the exception of the words in italics.