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No. 2467.

Book 4, tit. 2, chap. 1, sec. 4, § 3, art. 1.

No. 2468.

during the minority of the ward, and consequently in respect of such leases, they possess the same powers of making distress as other persons granting leases in their own rights.(a)

§ 3. Of the things which may or may not be distrained.

2467. In general, goods found upon the premises demised to a tenant, are liable to be distrained by a landlord for rent, whether such goods belong in fact to the tenant or to other persons. (b) But such goods are sometimes privileged from distress, first, absolutely; secondly, conditionally.

Art. 1.-Of the goods absolutely exempt from distress.

2468. Goods are absolutely privileged from distress for various reasons:

1. Because they are protected on account of the rights of their owners. Of this kind are the goods of a person who has some interest in the land, jointly with the distrainor, as those of a joint tenant, which, although found upon the land, are not subject to distress. The goods of a former tenant, rightfully on the land, cannot be distrained for another's rent; for example, a tenant at will, if quitting upon a notice from his landlord, is entitled to the emblements or growing crops; and, therefore, even after they are reaped, if they remain on the land, for the purpose of husbandry, they cannot be distrained for rent due by the second tenant, and they are equally protected in the hands of his vendee.(c) The goods of an ambassador or other foreign minister, who is protected

(a) Shopland v. Rydler, Cro. Jac. 55, 98.

() In some states this right is limited. In Texas a distress can be made only on the crop which grew upon the land, and even that is restricted as to time. Dallam's Dig. of Laws of Texas, 199, 200.

(c) Eaton v. Southby, Willes, 131.

No. 2468.

Book 4, tit. 2, chap. 1, sec. 4, § 3, art. 1.

No. 2468.

by act of congress from all actions, cannot be distrained.

2. Because no one can have property in them. As every thing which is distrained is presumed to be the property of the wrong doer, it follows that such things in which no man can have an absolute and valuable property, as cats and dogs, and animals feræ naturæ, cannot be distrained; because in animals feræ naturæ there can be no property without possession, and as the property in them is lost with the loss of possession, they are incapable of being held as a pledge. (a) Yet if deer, which are of a wild nature, are kept in a private inclosure, for the purpose of sale or profit, this so far changes their nature, by reducing them to a kind of stock or merchandise, that they may be distrained for rent.(b)

3. Because they cannot be restored to the owner in the same plight in which they were taken, such as milk, fruit, and the like, which would be spoiled.(c)

4. Because they are fixed to the freehold and make a part of it, or are constructively annexed to it. Things affixed or annexed to the freehold, as furnaces, windows, doors, and the like, cannot be distrained, because they are not personal chattels, but belong to the realty.(d) And this rule extends to such things as are essentially a part of the freehold, although for a time separated from it, as a millstone removed to be picked; for this is a matter of necessity, and it remains in contemplation of law a part of the freehold.(e) Deeds, which relate to the realty, would probably be also exempted from distress. Upon the same principle of annexation, grass, corn growing in the ground, and the like, could not be distrained, but the English statute of 11 Geo. II., c. 19, s. 8, the

(a) Ham. N. P. 375.
(b) 3 Bl. Com. 7.
(c) 3 Bl. Com. 9.
(d) Co. Litt. 47, b.

(e) Bro. Ab. Distress, pl. 23; Gorton v. Faulkner, 4 T. R. 567.

No. 2468.

Book 4, tit. 2, chap. 1, sec. .4, § 3, art. 1.

No. 2468.

principles of which have been adopted, perhaps, in most of the states of the Union, enables the landlord or lessor to seize all sorts of grass, hops, fruits, roots, pulse, or other product whatsoever, which shall be growing on any part of the premises demised, as a distress for rent. It has, however, been held, that the word product is confined to the products of a similar nature with those specified in the statute, to all of which the process of becoming ripe, and of being cut, gathered, made and laid up, when ripe, is incidental; and therefore does not extend to trees, shrubs and plants growing in a nursery ground.(a)

5. Because it is against the policy of law that they should be distrained. Goods are privileged in cases where the proprietor is either compelled from necessity to place his goods upon the land, or where he does so for commercial purposes. Natural justice would require that the goods of the defaulter only should be distrained to pay his rent. It is for this reason, that goods placed upon the land, as a matter of necessity, are not liable to be distrained; such as the goods of a traveller at an inn, or goods placed upon the land of a neighbor to save them from fire, or in case of goods put on shore, to save them from shipwreck. Again, the interests of the community require that commerce should be encouraged; for adventurers would not engage in speculations, if the property embarked were to be made liable for debts which they never contracted. Hence goods landed at a wharf, or deposited in a warehouse on storage, cannot be distrained. (b) On the same principle, it has been decided that the goods of a boarder are not liable to be distrained for

(a) Clark v. Gaskarth, 8 Taunt. 431.

(6) Brown v. Simms, 17 S. & R. 138; Himely v. Wyatt, 1 Bay, 102; Walker v. Johnson, 4 McCord, 552; Thompson v. Masheter, 1 Bing. 283; Francis v. Wyatt, Burr. 1498, 1502; Owen v. Boyle, 9 Shepl. 47, where the meaning of warehouse is explained. See Bevan v. Crooks, 7 Watts & Serg. 452; Elford v. Clark, 2 Brevard, 88.

No. 2469.

Book 4, tit. 2, chap. 1, sec. 4, § 3, art. 2.

No. 2469.

rent due by the keeper of the boarding house ;(a) unless used by the tenant with the boarder's consent.(b) Valuable things in the way of trade, are not liable to distress; as a horse standing in a smith's shop to be shod, or, as above stated, in a common inn; or cloth at a tailor's house to be made into a coat; or corn sent to a mill to be ground; for these are protected for the benefit of trade.(c)

6. Because they are in the custody of the law; for the distrainor cannot then lawfully take them into possession. Goods taken in execution cannot therefore be distrained; but the goods which have been distrained and replevied are no longer in legal custody, and they may be distrained by another landlord for subsequent rent.(d)

7. Because they are protected by some legislative enactment. In some states goods are protected from distress or execution to a certain amount; in others, certain tools, furniture, school books, and such other things as are deemed necessary to a poor family, are exempted from distress, execution or sale.

Art. 2.-Of the goods conditionally exempt from distress.

2469. Having considered in the preceding article what goods are absolutely exempt from distress, it remains to be ascertained what goods are conditionally privileged. These may be distrained, but only under certain circumstances. They are:

1. Beasts of the plough, which are exempt if there be a sufficient distress besides, on the land whence the rent issues.(e)

2. Implements of trade, as a loom in actual use, and there is a sufficient distress besides. (f)

(a) Riddle v. Welden, 5 Whart. 9.

(b) Mathews v. Stone, 1 Hill, 565. See 5 Blackf. 489.

(c) 3 Bl. Com. 8; Youngblood v. Lowry, 2 McCord, 39. See Hoskins v. Paul, 4 Halst. 110.

(d) Woglam v. Cowperthwaite, 2 Dall. 68.
(e) Co. Litt. 47, a; Bac. Ab. Distress, B.
(f) Simpson v. Hartopp, Willes, 517.

No. 2470.

Book 4, tit. 2, chap. 1, sec. 4, § 4.

No. 2471.

3. Other things in actual use, as a horse on which a man is riding, an axe in the hands of a person cutting wood, and the like.(a)

§ 4. Of the time when a distress ought to be made.

2470.-1. At common law, the distress must be made during the continuance of the lease, as the relation of lessor and lessee must exist; but it has been decided, contrary to this general rule, that a lessor may seize and distrain the goods of a tenant holding over. (b) The distress cannot be made till the rent is due by the terms of the lease; as rent is not due, for this purpose, until the last minute of the natural day on which it is reserved, it follows that a distress for rent cannot be made on that day. (c) As a general rule, a previous demand is not necessary, although there is a clause in the lease that the lessor may distrain for rent, "being lawfully demanded,"(d) the making of the distress, like the commencement of an action, being a demand in such case. It is however advisable to make a demand. But where a lease provides for a special demand, as if the clause were that if the rent should happen to be behind, it should be demanded at a particular place, not on the land, or be demanded of the person of the tenant, then such a special demand is requisite to support the distress. (e)

2471.-2. A distress for rent cannot be made during the night, but must be made in day time; (f) though a distress damage feasant may be made during the night.(g)

(a) Co. Litt. 47, a.

(b) Keilw. 96. Vide ante, n. 2450.

(c) 1 Saund. 287; Co. Litt. 476, n. 6.

(d) Bac. Ab. Rent, I; Bradb. on Dist. 124.

(e) Bac. Ab. Rent, I; Plowd. 69.

(f) Co. Litt. 142, a.

(g) Heyden v. Godsale, Palm. 280.

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