only, can

SECTION II.

WHO MAY DISTRAIN.

Persons A PERSON seised in fee or possessed of a term for years who having the has granted out or underleased the premises for a shorter period reversion than his own interest, with a reservation of rent may distrain distrain. for rent in arrear without any express provision. But if a person transfers all his interest in the premises to another, so that he has not the reversion, although he reserves a rent he cannot distrain for it unless he reserves to himself a power of distraining, his only remedy in such case being by an action on the contract.(1) Therefore where A., the lessee of two farms, agreed with B. that he should have them during the leases; B. to remain tenant to A. during that period, and at the leaving the farms, B. was to be paid for the fallows and dung; B. took possession and took one year's rent to A., who afterwards distrained for rent in arrear; held, that he was not entitled so to do, as the agreement operated as an absolute assignment of all A.'s interest in the farms. So, where a lessee, whose term was to expire on the 11th of November, let the premises on the 11th of the preceding September to the plaintiff, who was to *788 *hold them until the 11th of November, on paying down an immediate rent; it was held that the lessee could not distrain the goods, as the terms of the letting amounted to a lease, by which the whole of the lessee's interest had passed to the plaintiff.a

Where A., being seised in, fee, demised premises to B. for a term of years, and during the continuance of the lease, he granted another lease to C., to take effect from the expiration of the first; held, that A. did not thereby part with the reversion so as to disentitle him to distrain for rent due from B. under his lease.

A tenant from year to year underletting from year to year has a reversion which enables him to distrain. Where a person entered upon premises subject to the approbation of the

a landlord's receiver allowed the tenant to make a deduction in respect of a payment for land tax every year for seventeen years, greater than the landlord was liable to pay, the landlord knowing, or having the means of knowing, all the facts; held, that he could not distrain for the amount erroneously allowed, though the receipt given every year showed the amount paid and the amount deducted. Bramston v. Robins, 4 Bing. 11. (13 Eng. C. L. 323.)

Bac. Ab. 196. Litt. S. 214. Wade v. Marsh, Latch. 211. Smith v. Mapleback, 1 T. R. 414. Latch. 211. Preece v. Corrie, 5 Bing. 24. • Parmenter v. Webber, 2 Moore, 656. a Preece v. Corrie, supra. 'Curtis v. Wheeler, M. & M. 493. (22

v. Cooper, 2 Wils. 375. Wade v. Marsh, (15 Eng. C. L. 353.) 2 M. & P. 57. Taunt. 593. (4 Eng. C. L. 214.) Smith v, Day, 2 Mees. & Wels. 684. Eng. C. L. 367.)

8

(1) (Ege v. Ege, 5 Watts, 134.)

landlord, and afterwards agreed to pay an advanced rent as well for the time he had been in possession as for the future; it was held that the landlord might distrain for the advanced rent accrued before the agreement, as well as for what accrued afterwards, such agreement giving him the same power by relation to his tenant's first entry into possession, as it did to recover his rent in future.a

But if the landlord does any act which rebuts the presumption of an existing tenancy, as if he treats the occupier as a trespasser, by bringing ejectment against him, he cannot afterwards distrain him for rent; and if the tenant holds over after having received notice to quit from the landlord, he is not liable to a distress without some evidence of a renewal of the tenancy; for a mere holding over does not make him a tenant upon the old terms so as to confer on the landlord the right of distress; his remedy in such case is by an action for double value. But, if the tenant holds over after having given the landlord notice to quit, the latter may distrain for double rent during all the time that the tenant continues in possession. A weekly tenant, however, is not liable to be distrained for double rent, for holding over after notice; for he does not come within the statute.

As tenants in common are obliged to avow separately, they *789 should make several distresses. If a tenant to two tenants Tenants in in common receive a notice from one not to pay the whole common. rent to the other, and afterwards do so, the one who gave the notice may distrain for his share.g 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.h

One of several coheirs in gavelkind may distrain for rent due Coparto all, without the authority of his coheirs. Coparceners ceners. being considered but as one heir in law, must join in making a

• M.Leish v. Tate, Cowp. 781.

Bridges v. Smith, 5 Bing. 410. (15 Eng. C. L. 481.) 2 M. & R. 740.

* Jenner v. Clegg, 1 M. & Rob. 213. Confirmed by the Court of Exchequer. See ante, 729. But see Zouch d. Ward v. Willingale, I H. Bl. 311; where a distress under such circumstances was deemed merely a waiver of the notice.

d By 11 G. II, c. 19, s. 18, this statute applies only to cases where the tenant has the power of determining the tenancy, and has given a valid notice. Johnstone v. Hudlestone, 4 B. & C. 922, (10 Eng. C. L. 471,) ante, 732.

* Sullivan v. Bishop, 2 C. & P. 359. (12 Eng C. L. 170.)

'Pullen v. Palmer, 3 Salk. 207. Bradley on Dis. 41.

Harrison v. Barnby, 5 T. R. 246. And see Doe d. Prichitt v. Mitchell, 1 B. & B. 11. (5 Eng. C. L. 4.) Powis v. Smith, 5 B. & A. 850. (7 Eng. C. L. 279.) Whitley v. Roberts, 1 M'Clel. & Y. 107.

Leigh v. Shepherd, 2 B. & B. 465. (6 Eng. C. L. 203.)

Joint tenants.

distress, but after partition they may make several distresses." One joint tenant may distrain alone, but then he must avow in 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 Tenant by due to all. As the tenant by the courtesy has an estate of freehold, he is, in contemplation of law, a reversioner, in all lands of courtesy. 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 it."

the

Tenants

Mortgagor

gagee.

Tenants by elegit, statute staple, or statute merchant may under exe- distrain. A mortgagor may distrain under a lease by deed cution. granted by himself after the mortgage, by virtue of the estopand mort- pel, but not for rent due under a lease granted previous to the mortgage, for the privity of estate is destroyed by the mort*790 *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.b

Annuitants.

Husbands

An annuitant may distrain for arrears, though the term be vested in himself, to secure the payment.i

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 land, 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 pur autre 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.

Tenants

vie.

Executors

At common law executors or administrators could not disand admi- train for arrears incurred in the lifetime of the owner of the nistrators. rent, but by 32 Hen. VIII, c. 37, s. 1, "the personal repre

sentatives of tenants in fee, tail, or for life, of rent-services, rent-charges, rents-seck, and fee-farms may distrain for the arrear, 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

Stedman v. Page, 1 Salk. 390. Co. Litt. 164, b. Butler & Baker's Case, 3 Co.

22, b.

Pullen v. Palmer, supra. 5 Mod. 73.
Robinson v. Hoffman, 4 Bing. 562.

a Bradley on Dis. 46.

Bro. Ab. Distress, Pl. 72. Cubit's

f Bradley on Dis. 99.

h Keech d. Warne v. Hall, id. 21. Ognet's Case, 4 Co. 61.

(15 Eng. C. L. 73.) 1 M. & P. 474.

Case, 4 Co. 7.

Moss v. Gallimore, Doug. 279.
Fairfax v. Gray, 2 Bl. 1326.

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 action; 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 *rent, so as to enable the executors to distrain for arrears of *791 rent accrued in the testator's lifetime.

rent due in

six

But the 3 & 4 W. IV, c. 42, s. 37, enacts, "that it shall be Executors lawful for the executors and administrators of any lessor or may dislandlord to distrain upon the lands demised, for any term, or at train for will, for the arrearages of rent due to such lessor or landlord in the lifehis lifetime, in like manner as the lessor might have done in his time of the lifetime;" and by sect. 38, "such arrearages may be distrained testator, for after the end or determination of such term or lease at will, and within in the same manner as if such term or lease had not been ended or determined, provided that such distress be made within six ter the decalendar months after the determination of such term or lease, terminaand during the continuance of the possession of the tenant from tion of a whom such arrears became due; provided also, that all and term. 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."

months af

and com

moners.

A lord of a manor may of common right distrain for his copy- Lords of hold rents. If by a custom the lord is precluded from turning manors 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. 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 color 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 "turned on the *792

* Hool v. Bell, 1 Lord Raym. 172. Lambert v. Austin, Cro. Eliz. 332. See Prescott v. Boucher, 3 B. & Ad. 858. (23 Eng. C. L. 197.)

Turner v. Lee. Cro. Car. 471.

Prescott v. Boucher, 3 B. & Ad. 849. (23 Eng. C. L. 197.) Jones v. Jones, id. 967. (23 Eng. C. L. 202.) See Renven v. Watkin, S. N. P. 668. Powell v. Killick, id. Meriton v. Gilbee, 8 Taunt. 159. (4 Eng. C. L. 57.) Martin v. Burton, 1 B. & B. 279. (5 Eng. C. L. 82.) 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. Black. 4€5.

43 & 4 W. IV, c. 42, s. 37, 38. Grant of rent to testator for years, with a clause of distress that the grantee and his heirs may distrain; held, that the executor should distrain, and not the heir. Darrel v. Wilson, Crɔ. Eliz. 644.

common without any pretence of right, the commoner may distrain them.a

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.

Payment or tender

SECTION III.

HOW A DISTRESS MAY BE AVOIDED.

IN general the landlord may distrain whenever the rent is in arrear, but a tender of the rent at a proper time and place, of the rent even though he refuse to take it, will supersede his power of will prevent a dis- distraining. A distress made after a tender of the arrears is

tress.

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. 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 *793 sufficient. The landlord's privilege of distraining *may be waived by contract; as where the 'tenant with the privity of

Hall v. Harding, 1 Black. 673. 4 Burr. 2426.
Whiteman v. King, 2 H. Bl. 4.

d Vertue v. Beasly, 1 M. & Rob. 21.

Anon. 1 Vent. 21.

Firth v. Purvis, 5 T. R. 532. 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. (13 Eng. C. L. 410.) 12 Moore, 454. 'Smith v. Goodwin, 4 B. & Ad. 413. (24 Eng. C. L. 89.) Or if the tender be made to 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 tender of amends to her was held sufficient. Browne v. Powell, 4 Bing. 230. (13 Eng. C. L. 410.)