reserving rent, this is a rent-service within the statute; from whence it may be inferred, that he thought that a rent reserved upon a lease for years was not within it, and I apprehend that it is not; for the landlord is not tenant in fee, fee-tail, or for life, of such a rent, and it is the executors of such tenants only who are mentioned in the Act. However, in trespass, where it appeared that the defendant had distrained the plaintiff's goods for rent due to his testator upon a lease for years, Lord C. J. Lee held it to be within the statute, and the defendant obtained a verdict (a).

This statute does not extend to copyhold rents, but only to rents out of free-land (b).

What things are distrainable.-With respect to the things which may be taken under this process, a distress being anciently considered merely as a pledge in the hands of the lord to compel the tenant to perform the service or duty, could not at common law be sold, but was to be restored in the same plight to the owner when such service or duty was performed, and nothing could be distrained unless it could be returned in specie and undamaged. It follows, that money cannot be distrained unless it be in a bag, for then it may be identified; so milk, fruit, &c. cannot be distrained; nor, till made distrainable by statute, could hay or sheaves of corn be the subject of a distress, unless they were in a cart (c).

As to the things, however, which may be distrained, or taken in distress, we may lay it down as a general rule, that all chattels personal are liable to be distrained, unless particularly protected or exempted (d).

By stat. 2 W. 3. c. 5. it is enacted, That it shall be lawful for any, having arrear of rent, to seize and secure any sheaves or cocks of corn, or corn loose or in the straw, or hay being in any barn or granary, or upon any hovel, stack, or rick, or otherwise upon any part of the land or ground charged with such rent, and to lock up or detain the same in the place where the same shall be found, until the same shall be replevied, or sold.

By stat. 11 G. 2. c. 19. s. 8. the landlord may take and seize, as a distress for arrears of rent, all sorts of corn and grass, hops, roots, fruits, pulse, or other product whatsoever growing upon any part of the estate demised; and the same may cut, gather, make, cure, carry and lay up, when ripe, in the barns, or other proper place on the premises; and if there should be no barn or other place on the premises, then in any other barn or proper place which he shall procure, as near as may be to the premises; and in convenient time appraise, sell, or otherwise dispose of the same towards satisfaction of the rent and of the charges of such distress, appraisement, and sale; the ap(c) Gilb. L. of Dist. 34, &c. (d) 3 Bl. Com. 7.

(a) Bull. N. P. 57.

(b) Appleton v. Doiley. Yelv. 135.

praisement thereof to be taken, when cut, gathered, cured, and made, and not before: provided always, (s. 9.) that notice of the place where such distress shall be lodged, shall, in one week after the lodging thereof, be given to the tenant, or left at the last place of his abode; and that if the tenant shall pay or tender the arrears of rent and costs of the distress before the corn, &c. be cut, the distress shall cease, and the corn, &c. be delivered up.

But if growing corn be sold under a fieri facias, it cannot afterwards be distrained for rent, unless the purchaser allow it to remain on the ground an unreasonable time after it is ripe (a).

By the stat. 56 G. 3. c. 50.s. 11. it is enacted, That no sheriff or other officer in England or Wales, shall, by virtue of any process of any court of law, carry off or sell, or dispose of for the purpose of being carried off from any lands let to farm, any straw thrashed or unthrashed, or any straw of crops growing, or any chaff, colder, or any turnips, or any manure, compost, ashes or sea-weed, in any case whatsoever, nor any hay, grass or grasses, whether natural or artificial, nor any tares or vetches, nor any roots or vegetables, being produce of such lands, in any case where according to any covenant or written agreement entered into and made for the benefit of the owner or landlord of any farm, such hay, grass or grasses, tares and vetches, roots or vegetables, ought not to be taken off or withholden from such lands, or which by the tenor or effect of such covenants or agreements ought to be used or expended thereon; and of which covenants or agreements such sheriff or other officer shall have received a written notice before he shall have proceeded to sale.

The second section provides that the tenant shall give notice to the sheriff of the existence of covenants; and the sheriff to the landlord.

Section 3. enacts, "That such sheriff or other officer executing such process, may dispose of any crops or produce hereinbefore mentioned, to any person or persons who shall agree in writing with such sheriff or other officer, in cases where no covenant or written agreement shall be shewn, to use and expend the same on such lands in such manner as shall accord with the custom of the country; and in cases where any covenant or written agreement shall be shewn, then according to such covenant or written agreement; and after such sale or disposal so qualified, it shall be lawful for such person or persons to use all such necessary barns, stables, buildings, out-houses, yards and fields for the purpose of consuming such crops or produce, as such sheriff or other officer shall allot or assign to them for that purpose, and which such tenant or occupier would have been entitled to and ought to have used for the like purpose on such lands.

And by section 6. it is further enacted, That in all cases where any (a) Peacock v. Purvis. 2 B. & B. 362.

purchaser or purchasers of any crops or produce hereinbefore mentioned, shall have entered into any agreement with such sheriff or other officer, touching the use and expenditure thereof on lands let to farm, it shall not be lawful for the owner or landlord of such lands to distrain for any rent on any corn, hay, straw or other produce thereof, which, at the time of such sale, and the execution of such agreement entered into under the provisions of this Act, shall have been severed from the soil, and sold subject to such agreement by such sheriff or other officer; nor on any turnips, whether drawn or growing, if sold according to the provisions of this Act; nor on any horses, sheep or other cattle, nor on any beast whatsoever, nor on any waggons, carts, or other implements of husbandry, which any person or persons shall employ, keep, or use on such lands for the purpose of thrashing out, carrying or consuming any such corn, hay, straw, turnips or other produce under the provisions of the Act, and the agreement or agreements directed to be entered into between the sheriff or other officer, and the purchaser or purchasers of such crops and produce as hereinbefore are mentioned.

The tools and utensils of a man's trade cannot be distrained while there is any other distress on the premises, or even while they are in actual use; therefore the axe of a carpenter, the books of a scholar, and the like, are not distrainable while any other distress can be had, or while they are in actual use (a).

Thus, in trover for a stocking-loom which had been distrained for rent, where it appeared that an apprentice was using the loom at the time it was taken, the Court held that it could not legally be taken while the apprentice was using it.

But in trover for three tape-looms, where it appeared that they had been distrained for rent because there was no other sufficient distress upon the premises, the Court held the distress good, as it did not appear that the looms were in actual use at the time they were taken.

Lest this rule, however, should be carried so far as to privilege the sheep of the tenant, and the beasts of the plough (they being the materials of husbandry, to plough and manure the land), and by that means the landlord be totally disappointed of the rents, this matter has been settled by the statute de districtione scaccarii, 51 H. 3. st. 4. which is an affirmance of the common law, and enacts that no man shall be distrained by the beasts of his plough or his sheep, either by the king or any other, while there is another sufficient distress; unless indeed for damage feasant, in which case the thing that does the trespass must make compensation.

Note. In an action on the above-mentioned statute, it is not neces

(a) Gilb. L. of Dist. 36, &c.

sary to shew that there was a sufficient distress, præter, &c. but it must come on the other part, viz. to plead that there was not a sufficient distress, præter, &c. It must be intended that there was cattle sufficient at the time of the distress, and it is not material what was before or after.

The rule of the common law, which exempts utensils, tools, instruments of husbandry, &c. from distress, has been adjudged to hold as to distress for rent arrear, amerciaments, &c. not for poor-rates, &c. which are out of present consideration, and are noticed in Chap. VIII. Sec. III.

The general rule of law is, that all things upon the premises are liable to the landlord's distress for rent, whether they be the effects of a tenant or of a stranger; because of the lien which the landlord has on them in respect of the place where the goods are found, and not in respect of the person to whom they belong.

But this rule has many exceptions in favour of trade, to protect the goods of third persons which happen to be upon the tenant's premises in the way of his trade; therefore things sent to public places of trade, as cloth in a tailor's shop, yarn in a weaver's, a horse in a smith's, and the like, are not distrainable.

But a gentleman's chariot standing in a coach-house belonging to a livery-stable keeper, is, it seems, liable to a distress.

But if a horse go with yarn, &c. to a weaver, &c. or fetch yarn from thence and carry it to a private house to be weighed, and it be hung there till the yarn be weighed, neither the horse nor yarn can be distrained.

So, a horse that brings corn to market, and is put into a private yard while the corn is selling, cannot be distrained; because the bringing of the corn there is in the way of trade, and consequently of public benefit.

So, goods in the possession of a common carrier are protected from distress for the benefit of trade; as if they be delivered to him to put into a waggon in a private barn.

Neither can the horse on which I am riding be distrained; for it is in use.

Nor can wearing apparel, if in use, be distrained; but wearing apparel not in use is distrainable for rent (a).

The goods of a tenant are liable for a year's rent, notwithstanding outlawry in a civil suit.

Therefore, where a sheriff's officer, being in possession of the tenant's effects under an outlawry, made a distress for rent, sold the goods distrained, and afterwards the outlawry was reversed: the officer was held liable to pay the produce of the goods in an action

(a) Baynes v, Smith. 1 Esp. R. 206.

for money had and received; for they were not in custodia legis, the judgment being mere waste paper. If, during the time that he was in possession under the outlawry, he were put to any expense in reaping and getting in the crops, he may maintain an action against the tenant to recover those expenses.-Even if the outlawry had not been reversed, the landlord would have been entitled to a year's rent, because capias utlagatum at the suit of the party is to be considered only as a private execution (a).

By sect. 8. of the stat. 11 G. 2. c. 19. every landlord may take and seize, as a distress for arrears of rent, any cattle or stock of his tenant feeding or depasturing upon any common appendant or appurtenant, or any ways belonging to any part of the premises demised.

It seems to be now settled, that where beasts escape, and come upon the land by the negligence or default of their owner, and are trespassers there, they may be distrained immediately by the landlord for rent arrear (b).

But where they come upon land by the insufficiency of fences, which the tenant, being a lessee, ought to repair, the lessor cannot distrain such beasts, till they have been levant and couchant, and after that actual notice has been given to the owner that they are there, and he has afterwards neglected to remove them. But such notice, it is said, is not necessary where the distress is by the lord of the fee for an ancient rent, or by the grantee of a rent-charge.

Therefore, where a stranger puts in his beasts to graze for a night by the consent of the lessor and license of the lessee, yet the lessor may distrain them for rent due out of those lands which he consented that the beasts should graze on: because such consent was no waiver of his right to distrain, unless it had been expressly agreed so; for being but a parol agreement, it could not alter the original contract between the lessor and lessee, from which the power to distrain arises. The circumstance of the beasts being on the road to market does not privilege them from the distress.

As to cattle, therefore, the safest way is to drive them to a public inn; for an inn being publici juris, and every man having a right to put up at it, the cattle and goods of a guest are not distrainable there.

The privilege which exempts cattle and goods from being distrained at an inn, arises from the circumstance of their being there by authority of law; for common inns are so much devoted to the public service, that their owners are obliged to receive all guests and horses that come to them for reception.

(a) St. John's Coll. Oxford v. Murcott, (6) Gilb. L. of Dist. 45, &c.

7 T. R. 259.