not be vex atious. 2 Inst. 107. Distress must By the statute of Marlbridge, 52 Hen. 3, c. 4, if any man takes a great or unreasonable distress for rent arrear, he shall be heavily amerced for the same. As if the landlord distrain two oxen for 12d. rent, the taking of both is an unreasonable distress; but if there were no other distress nearer the value to be found, he might reasonably have distrained one of them; but for homage, fealty, or suit and service, as also for parliamentary wages, no distress can be excessive. For as these distresses cannot be sold, the owner, upon making satisfaction, may have his chattels again. Bro. Abr. tit. Assiz. 291. 98. Remedy for excessive dis tress. The remedy for excessive distresses is by a special action on the statute of Marlbridge; for an action of trespass is not mairtainable on this account, it being no injury at common law (7). When the distress is thus taken, the things distrained mast Disposal of the be carried to some pound, and there impounded by the taker. 1 Vent. 104. Fitzgibb. 85. 4 Burr. 590. distress. the execution must pay to the landlord one year's rent before proceeding to execute his judgment; and the sheriff is empowered to levy as well the money paid for rent as the execution money. "The statute only extends to cases in which there is an existing tenancy at the time of the execution; Hodgson v. Gascoigne, 5 B. & A. 88. It is to have a liberal construction; and the words, party at whose suit the execution is sued out," are construed to mean either plaintiff or defendant; but the provisions of the statute extend only to the immediate landlord, and not to the ground landlord, distraining the goods of an under lessee; Bennett's case, 2 Stra. 787: but it applies to the case of lessee and under tenant of apartments of a house, as well as to the case of landlord and lessee; Thurgood v. Richardson, 7 Bing. 428. The landlord can claim from the sheriff only the rent due at the time of taking the goods, and not that which accrued after the taking and during the continuance of the sheriff in possession, Hoskins v. Knight, 1 Maule & Selw. 245. Notice to the sheriff is necessary, in order to subject him to an action for removing the goods before a year's rent be paid; Arnett v. Garnett, 3 B. & A. 440. The remedy which a landlord has where the sheriff proceeds to levy the execution, and remove the goods, without paying the rent, is an action on the case; Levy v. Goodson, 4 T. R. 687; but a shorter remedy is, by motion to the court, that he may have restitution to the amount of the goods which the sheriff bas sold, if they amount to less than a year's rent, or if they amount to more, then to have so much as will satisfy a year's rent;" 2 Sel. Prac. 570; Woodfall's L. & T. by Harrison, 338 to 342. (n) The proper remedy for taking an excessive distress is case upon the statute of Marlbridge, 52 Hen. 3, c. 4; Hutchins v. Chambers, 1 Burr. 589. But to support such an action, the excess must be considerable; Sells v. Hoare, 8 Moore, 451, and such an action cannot be brought after recovery in replevin, 1 Selw. N. P. 655. By 2 W. & M. c. 1, s. 5, double the value of the goods distrained, and full costs, may be recovered where a distress is taken where no arrear of rent is due. And 11 Geo. 2, c. 19, where a distress is made for rent due, and any irregularity or unlawful act shall be done in distraining, the distress shall not be unlawful or avoided thereby; but the party aggrieved may recover damages and costs by action of trespass, or on the case. The same act provides that tender of amends may be made. lawful. But in their way thither they may be lawfully rescued by the When rescue owner, in case the distress was taken without cause or contrary to law: as if no rent be due, or if they were taken upon the highway or the like. But if they be once impounded, even Co. Litt 160, though taken without any cause, the owner may not break the pound and take them out; for they are then in the custody of the law (o). 161. Ibid. 47. A pound is either pound-overt, open overhead; or pound- Pounding discovert, inclosed. By 1 & 2 P. & M. c. 12, no distress of tress. cattle can be driven out of the hundred where it is taken, unless to a pound-overt within the same shire; and within three miles of the place where it was taken. And by 11 Geo. 2, c. 19, any person distraining for rent may turn any part of the premises upon which a distress is taken, into a pound, pro hac vice, for securing of such distress. If a live distress of animals be impounded in a common pound-overt, the owner must take notice of it at his peril; but if in any special poundovert so constituted for this particular purpose, the distrainor must give notice to the owner; and in both these cases, the owner, and not the distrainor, is bound to provide the beasts with food and necessaries (p). But if they are put in a poundcovert, as in a stable, the landlord or distrainer must feed and sustain them. A distress of household goods, or other dead chattels, liable to be stolen or damaged by the weather, must be impounded in a pound-covert, or if not, the distrainer must answer for the consequences. When impounded the goods were formerly only in the nature of a pledge, hence the distrainer could not work a distrained beast. And the law is so still as to beasts taken damage feazant, and distresses for suit or services: which must remain impounded till the owner makes satisfaction; or contests the right of distraining by replevying the chattels, that is, having them returned into his possession, by the sheriff, on giving him security to try the right of taking it in an action of replevin hereafter explained (q). Co. Litt. 47. Replevying the things dis trained. (0) By 2 W. & M. c. 5, s. 4, treble damages may be recovered in an action of case for trespass or pound breach. And it is no answer to such an action that the rent and demand were tendered after such distress and impounding; Firth v. Purvis, 5 T. R. 432. (p) This is altered by 5 & 6 Wm. 4, c. 59, s 4, the obligation to feed the animals is now on the distrainer, who is liable to a penalty of 5s. for every day's neglect, and he may recover the amount expended before a justice of the peace, or by sale after seven days. (9) See post, book 3, cap. 9. Sale of distress. 8 Rep. 41. Bro. ibid. 12 Mod. 330. For a debt due to the crown, unless paid within forty days, the distress was always saleable at common law. For an amercement imposed at a court leet the lord may sell the distress; partly, because it being the king's court of record its process partakes of the royal prerogative; but principally because it is in the nature of an execution to levy a debt. And so in the several statute distresses before mentioned, which are also in the nature of executions, the power of sale is likewise usually given to effectuate and complete the remedy. In all cases of distress for rent by several statutes, if the tenant or 2 W. & M. c.5, owner do not within five days (r) after the distress is taken, and notice thereof given him, replevy the same with sufficient security; the distrainor, with the sheriff or constable, shall cause it to be appraised by two sworn appraisers (s), and sold to pay the rent and charges, rendering the surplus to the owner (t). 8 Ann. c. 14. 4 Geo. 2, c. 28. Of seizing heriots. By 11 Geo. 2, c. 19, if in a distress any unlawful act be done, the whole shall not be unlawful, or the parties trespassers ab initio but the party grieved shall only have an action for the real damage sustained; and not even that, if tender of amends is made before any action is brought. The seizing of heriots, when due on the death of a tenant, is (r) of the days of taking and sale, one is inclusive, the other exclusive, as if the goods are distrained on the first, they may be sold on the sixth; 1 H. Bl. 14. Mr. Christian's note to Bl. Com. v. 3, p. 13. (s) By 2 W. & M. c. 5, s. 2, the person distraining with the sheriff or under-sheriff of the county, or with the constable of the hundred, or parish, or place where the distress is taken, (who are required to aid and assist) is to cause the goods distrained to be appraised by two sworn appraisers, wherein such sheriff, undersheriff, or constable are to swear to appraise the same truly. It is illegal to swear the person who distrains as one of the appraisers; Westwood v. Cowne, 1 Stark. 172. The appraisers must be sworn before the constable of the parish, where the distress is taken, who must attend with them at the time of the appraisement, and swear them before they make it; Avenell v. Croker, M. & M. 172; Kenny v. May, 1 M. & Rob. 56. (t) By 57 Geo. 3, c. 93, in any distress for rent, for less than 207., the following charges only shall be made, Levying distress, 3s., man in possession per day, 2s. 6d. Appraisement, 6d. in the pound, on the value of the goods, besides the stamp and expenses of advertisements; and for catalogues, sale, and commission, and delivery of goods, one shilling in the pound on the net produce of the sale. A justice of the peace may, on application, adjudge treble the amount of money unlawfully taken, with costs to be levied by distress; but no judgment is to be given against the landlord unless he personally levies the distress. In all cases of distress, brokers or persons levying, must give copies of their charges, and all the costs signed by them, to the persons whose goods are distrained. By 7 & 8 Geo. 4, c. 17, the provisions of the above act are extended to distresses for land tax, assessed taxes, poor's rates, church rates, tithes, highway rates, sewer rates, or any other rates, taxes, impositions, or assessments, not exceeding 201. another species of self remedy. For heriot service, which is only a species of rent, the lord may distrain for, as well as seize; but for heriot custom, which lies in prender, and not in Co. Cop. s. 25. render, the lord may seize the identical thing itself, but cannot distrain any other chattel for it. The same remedy is given with Cro. Eliz. 590. regard to waifs, wrecks, estrays, and deodands, or the persons entitled thereto may have their remedy by suit or action. That redress of private wrongs which arises from the joint act of all the parties together, is of two species, viz. accord and arbitration. Cro. Car. 260. Remedies by joint act of parties together. accord. Accord is a satisfaction agreed upon between the party Remedy by injuring and the party injured; which, when performed, is a bar of all actions upon this account. As if a man contract to build a house, or deliver a horse, and fail in it; this is an injury for which the sufferer may have his remedy by action; 3 Rep. 79. but if the party injured accepts a sum of money or other thing in satisfaction, this is a redress of the injury and takes away the action. tender. By 11 Geo. 2, c. 19, in case of irregularity in distraining; Satisfaction by and 24 Geo. 2, c. 24, in mistakes committed by justices of the peace, tender of sufficient amends to the party injured is a bar of all actions, whether he thinks proper to accept such amends or no (u). Arbitration is where the parties submit all matters in dis- Of arbitration. pute, concerning any personal chattels or personal wrong, to the judgment of two or more arbitrators, who are to decide the controversy; and if they do not agree, it is usual to add that another person be called in as umpire, to whose sole judgment it is then referred. This decision is called an award, which is binding between the parties. But the right of real property cannot thus pass by a mere award. Which subtilty, 1 Roll. Abr. in point of form, had its rise in feodal principles: for if this 1 Lord Raym. had been permitted, the land might have been aliened col 242. 115. (u) And by 3 & 4 Wm. 4, c. 42, s. 21, it shall be lawful for the defendant in all personal actions (except actions for assault and battery, false imprisonment, libel, slander, malicious arrest or prosecution, criminal conversation, or debauching of the plaintiff's daughter or servant) by leave of any of the superior courts, where such action is pending, or a judge of any of the said courts, to pay into court a sum of money by way of compensation or amends, in such manner and under such regulations as to the payment of costs and the form of pleading as the said judges by any rules or orders shall direct; and by Reg. Gen., K. B. C. P. & Ex. H. T. 4 Wm. 4, in all the cases authorized in the act, a defendant may pay money into court without a rule or judge's order, but such payment must in all cases be pleaded. lusively thereby. Yet an arbitrator may award a conveyance or release of land; and to refuse compliance will be a breach of the arbitration bonds, which it is the practice to enter into, with condition to stand to the award of the arbitrators or umpire therein named. And by 9 & 10 Wm. 3, c. 15, all merchants and others, who desire to end any controversy, suit, or quarrel (for which there is no other remedy but by personal action or suit in equity) may agree that their submission of the suit to arbitration shall be made a rule of any of the king's courts of record, and may insert such agreement in their submission or promise, or condition of the arbitration bond; which agreement being proved upon oath by one of the witnesses thereto, the court will make a rule that such submission and award shall be conclusive; and after such rule made, the parties disobeying the award shall be liable to be punished as for contempt of the court (v), unless such award shall be set aside for corruption, or other misbehaviour in the arbitrators or umpire proved on oath to the court within one term after the award is made. Of retainer by executor or administrator. CHAPTER II. OF REDRESS BY THE MERE OPERATION OF LAW. THE remedies for private wrongs, which are effected by the mere operation of the law, are; the one that of retainer, where a creditor is made executor or administrator to his debtor; the other in the case of what the law calls remitter. When a creditor is executor or administrator he is allowed to retain his own debt; because he cannot commence a suit against himself as representative of the deceased, to recover that which is due to him in his private capacity; but having the whole personal estate in his hands, so much as is sufficient to answer his own demand, is by operation of law applied to that particular purpose. Else by being made executor he would be in a worse condition than others: for the creditor who first commences his suit being entitled to a preference in (v) By 3 & 4 Wm. 4, c. 42, s. 39, submission to arbitration by rule of court, or judge's order, or order of nisi prius, shall not be revocable without leave of the court by which such rule or order shall be made, or by leave of a judge; and the arbitrator or umpire shall proceed with the reference, notwithstanding such revocation. By ss. 40, and 41, power is given to compel the attendance of witnesses and to administer oaths. |