he, with the sheriff, &c. shall cause the goods to be appraised by two sworn appraisers. The landlord must remove the goods at the end of five days, and will be deemed a trespasser for any time beyond it that he keeps them. The five days allowed before a distress can be sold, are inclusive of the day of sale, wherefore it seems the distress may be removed on the sixth day. Thus, where a distress was made and a regular notice of sale given on the 12th day of May, and on the afternoon of the 17th day of the same month the goods were removed and sold, it was held that on the evening of the 17th, five days from the time of the distress had completely expired, and that the removal and sale were regular according to the time allowed by the statute. Where one, who entered under a warrant of distress for rent in arrear, continued in possession of the goods upon the premises for fifteen days, during the four last of which he was removing the goods, which were afterwards sold under the distress: held that at any rate he was liable to trespass quare clausum fregit, for continuing on the premises and disturbing the plaintiff in possession of his house, after the time allowed by law (a). Notice to the owner is sufficient as against him: unless a replevin has been sued by the tenant, in which case, personal notice to the tenant is sufficient to warrant a sale under the stat. 2 W. & M. sess. 1. c. 5. s. 2. and is preferable indeed to notice left at the mansion-house. Upon the sale of the distress the appraisers need be sworn by the constable only of the hundred in which the distress is impounded. An irregularity in this process does not now render the distrainer, as he was at the common law, a trespasser ab initio: for by stat. II G. 2. c. 19. s. 19. it is provided, that where any distress shall be made for any kind of rent justly due, and any irregularity shall be afterwards done by the party distraining or his agent, the distress shall not be deemed unlawful, nor the distrainer a trespasser, ab initio ; but the party grieved may recover satisfaction for the special damage in an action of trespass, or on the case at his election. Therefore trespass will not lie for an irregular distress, where the irregularity complained of is not in itself an act of trespass, but consists merely in the omission of some of the forms required in conducting the distress, such as procuring goods to be appraised before they are sold. The true construction of the provision in 11 G. 2. c. 19. S. 19. that the party may recover a compensation for the special damage he sustains by an irregular distress " in an action of trespass or on the case," is that he must bring trespass, if the irregularity be (a) Winterbourne v. Morgan. 11 East, 395. in the nature of an act of trespass, and case, if it be in itself the subject-matter of an action on the case (a). But, by sect. 20, no tenant shall recover in such action, if tender of amends have been made before the action brought: and by sect. 21. the defendant in such action may plead the general issue and give the special matter in evidence. Under the plea of the general issue, given by this Act, a landlord cannot justify, except for acts done as landlord: therefore, although he may justify as far as the distress goes, he cannot under this issue justify expulsion. So also if the goods remain on the premises beyond the five days, he cannot justify, under this issue, entering the house to remove them afterwards, but must plead a licence to justify the asportation, or liberum tenementum, to justify the expulsion. For goods sold therefore before five days have expired next after the distress and notice, an action of trover will not lie, that being a remedy which cannot be pursued since the stat. 11 G. 2. c. 19. as it tends to place the landlord in the same situation as he was before the passing of that Act: the action ought to be brought specially for the particular irregularity. But though the tenant shall make satisfaction for the real damage only sustained, by any irregularity in taking or disposing of the distress; yet by the stat. 2 W. & M. sess. 1. c. 5. s. 3. if any distress and sale shall be made for rent pretended to be due to the person distraining, where in truth no such rent is due, the tenant shall recover double the value of the goods distrained, together with full costs of suit. Goods distrained by the plaintiff were delivered by him to the defendant on his promising to pay the rent: an action for money had and received would not lie for the value of the goods, though defendant do not pay the rent (b). Where there are three joint lessees, two of whom assign their interest to the third, whose sole liability the landlord has not consented to accept, the goods of the plaintiff being put on the premises by permission of such third lessee and distrained by the landlord for rent, and he having paid it, the three lessees are liable to him for money paid to their use (c). By stat. 57 G. 3. c. 93. s. 1. it is enacted no person whatsoever making any distress for rent, where the sum demanded and due shall not exceed the sum of twenty pounds for and in respect of such rent, nor any person whatsoever employed in any manner in making such distress, or doing any act whatsoever in the course of such distress, or for carrying the same into effect, shall have, take or receive out of the produce of the goods or chattels distrained on, or from (a) Messing v. Kemble. 2 Camp. 115. (b) Leery v. Goudson, 4. T. R. 687. (c) Exall v. Partridge. 3 Esp. R. 8. S. C. 8 T. R. 309. the landlord, or from any other person whatsoever, any other or more costs and charges for and in respect of such distress, or any matter or thing done therein than as follows: Levying distress 35. man in possession per day 2s. 6d. appraisement, whether by one broker or more, 6d. in the pound on the value of the goods; stamp the lawful amount thereof-all expences of advertisements (if any such) 10s.; catalogues, sale and commission, and delivery of goods, Is. in the pound on the net produce of the sale; and no person whatsoever shall make any charge whatsoever for any act, matter or thing as above, unless such act shall have been really done. By sect. 2. party aggrieved may apply to a justice of the peace, who is to summon offender and hear the case; and may award treble the amount of the monies unlawfully taken with full costs; to be levied by distress. Section 3. gives to the justice a power of summoning witnesses. Section 4. enacts that if complaint be unfounded, the justice may give costs to the party complained against not exceeding 20s. limits his power of making any order or judgment against the landlord to cases in which the landlord shall have personally levied the distress; and declares that parties are not barred of any legal remedies they might have before the passing of this act, except as far as any complaint shall have been determined by the order and judgment of the justice before whom it has been brought. Section 6. enacts that in all cases whether the sum distrained for shall or shall not exceed 20/. the person levying the distress shall give a copy of all his charges signed by him, to the person on whose goods the distress shall be levied. SECTION II. Of the Action of Debt, where the lease is by Deed. Another remedy for the recovery of rent is by action of debt, or covenant, where the premises are demised by deed. An action of debt or covenant lies for non-payment of the rent on the word "yielding" in a lease for years; for it is an agreement to pay the rent, which will make a covenant. The action of debt is founded upon a contract, either express or implied, in which the certainty of the sum or duty appears, and the plaintiff is to recover the sum in numero, and not in damages (a). Debt, being an action founded on an express contract, rents reserved on leases for years were at all times recoverable by this species of remedy (b). (a) Bull. N. P. 167. (5) Esp. N. P. 188, Lit. s. 58. So, debt lies for rent upon a lease, though the defendant entered before his title began: for though clearly he is a disseisor by his entry, and the accruing of his term shall not alter his estate, yet debt lieth for privity of contract; and whether the entry be tortious or not, it cannot discharge the contract for payment of the rent (a). At common law, debt did not lie for rent reserved upon a freehold lease during the continuance of the lease (b). But stat. 8 Ann c. 14. s. 4. enacts, that any person entitled to rent arrear on a lease for life or lives, may have an action of debt during the existence of the life, as on a lease for years during the term. But debt does not lie either at common law, or by stat. 8 Ann, c. 14. for the arrears of an annuity or yearly rent, devised payable out of lands to A. during the life of B., to whom the lands are devised for life, B. paying the same thereout so long as the estate of freehold continues (c). By the stat. 32 H. 8 c. 37. s. 1. the executors and administrators of tenants in fee, fee-tail, or for life, of rent-services, rent-charges, rentsseck and fee-farms, may bring debt for the arrearages against the tenant who ought to have paid the same. This statute extends to all tenants for life. Though it be not necessary in general to set out the indenture in the declaration in debt for rent, yet it seems necessary where the action is brought on a lease of tithes, which being an incorporeal hereditament lying in grant, could not be granted without deed (d). If one of two lessees assign his interest, and the other die before the rent becomes due, an action of debt in the debet et detinet will lie against the assignee and executrix of the deceased lessee for the whole rent (e). So, if the lessee for years will assign all his term in part of the land, the lessor shall have a joint action against the lessee and assignee (e). If there be a lessee for years, and he assign all his interest to another, yet may the lessor still have an action of debt against him for rent in arrear after the assignment: first, because the lessee shall not prevent by his own act such remedy as the lessor hath against him on his contract; 2dly, that the lessee might grant the term to a poor man, who would not be able to manure the land, and so for need or malice the land would lie untilled, and the lessor be without remedy, either by distress or action of debt (ƒ). (a) Alexander v. Dyer. Cro. Eliz. 169. Macdonnel v. Welder. I Str. 550. (b) Bishop of Winchester v. Wright. 2 Ld. Raym. 1056. (c) Webb v. Jiggs. 4 M. & S. 113, ver. 2 Saund. 297. n. I. (e) Bailiffs and Commonalty of Ipswich v. Martin. Cro. Jac. 411. (f) Hool v. Bell. I Ld. Raym. 172-3' Auriol v. Mills. 4 T. R. 94-98. But the lessor may either tacitly or expressly accept the assignee for his tenant, and so discharge the original lessee and if he once accept rent from the assignee, (who is bound however no longer than while in possession,) he can never resort back again to the first lessee (a). The executor or administrator of a lessee for years, may, like any other assignee, assign the term, and shall not be chargeable for rent after the assignment (a). In a plea of assignment in a lease of tithes, it is necessary for the defendant to allege that he assigned the term by indenture; for that was always required by the common law; and the statute of frauds 29 C. 2. c. 3. does not apply to cases of incorporeal hereditaments, for they are not within the mischief intended to be remedied by the statute (b). If the lessor assign his rent, without the reversion, the assignee (if the tenant agree) may maintain an action of debt for the rent, because the privity of contract is transferred (c). If the lessor grant away his reversion, he cannot have an action of debt for the rent, which being incident to the reversion, passes with it. The grantee of the reversion, therefore, can alone have the action (d). But the grantee even cannot have debt against the lessee if he have assigned over; for there was no privity between them but by reason of the privity of estate, and that being gone by the assignment, this action will not lie (e). Such is the case, whether the person claiming the rent comes in by succession or grant: thus the successor of a prebend cannot bring debt against the executor of a lessee of the prebendary, where such executor had assigned (ƒ). But if a lessee assign part of the land demised, a grantee of the reversion shall have debt against him for the whole rent: for the entire estate remaining in one part of the land, the privity remained entire and would support the action (g). A devisee may maintain debt for his share of the rent, and if there be a devise of a rent to be equally divided between three, each may have his action for his share (h). An agreement between the lessor and the assignee of the original lessee, "that the lessor should have the premises as mentioned in the lease, and should pay a particular sum over and above the rent annually towards the good-will already paid by such assignee," operates as (a) Esp. N. P. 201. (b) Dean and Chap. of Windsor v. Gover. 2 Saund. 298. n. 2. (c) Marle v. Flake. 3 Salk. 118. (d) Esp. N. P. 202. (e) Humble v. Glover. Cro. Eliz. 328. (g) Broom v. Hore. Ibid 633. |