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Bouvier's Law Dictionary, Revised 6th Edition (1856)

DISTRESS, remedies. A distress is defined to be, the taking of a personal
chattel, without legal process, from the possession of the wrong doer, into
the hands of the party grieved, as a pledge for the redress of an injury,
the performance of a duty, or the satisfaction of a demand. 3 Bl. Com. 6. It
is a general rule, that a man who has an entire duty, shall not split the
entire sum and distrain for part of it at one time, and part of it at
another time. But if a man seizes for the whole sum that is due him, but
mistakes the value of the goods distrained, there is no reason why he should
not afterwards complete his execution by making a further seizure. 1 Burr.
589. It is to be observed also, that there is an essential difference
between distresses at common law and distresses prescribed by statute. The
former are taken nomine penae, (q.v.) as a means of compelling payment; the
latter are similar to executions, and are taken as satisfaction for a duty.
The former could not be sold the latter might be. Their only similarity is,
that both are replevisable. A consequence of this difference is, that averia
carucae are distrainable in the latter case, although there be other
sufficient distress. 1 Burr. Rep. 588.
2. The remedy by distress to enforce the payment of arrears of rent is
so frequently adopted by landlords, (Co. Lit. 162, b,) that a considerable
space will be allotted to this article under the following heads: 1. The
several kinds of rent for which a distress may be made. 2. The persons who
may make it. 3. The goods which may be distrained. 4. The time when a
distress may be made. 5. In what place it may be made. 6. The manner of
making it, and disposing of the goods distrained. 7. When a distress will be
a waiver of a forfeiture of the lease.
3.-1. Of the rents for which a distress may be made. 1. A distress
may generally be taken for any kind of rent in arrear, the detention of
which, beyond the day of payment, is an injury to him who is entitled to
receive it. 3 Bl. Com. 6. The rent must be reserved out of a corporeal
hereditament, and must be certain in its quantity, extent, and time of
payment, or at least be capable of being reduced to certainty. Co. Lit. 96,
a.; 13 Serg. & Rawle, 64; 3 Penn. R. 30. An agreement that the lessee pay no
rent, provided he make repairs, and the value of the repairs is uncertain,
would not authorize the landlord to distrain. Addis. 347. Where the rent is
a certain quantity of grain, the landlord may distrain for so many bushels
in arrear, and name the value, in order that if the goods should not be
replevied, or the arrears tendered, the officer may know what amount of
money is to be raised by the sale, and in such case the tenant may tender
the arrears in grain. 13 Serg. & Rawle, 52; See 3 Watts & S. 531. But where
the tenant agreed, instead of rent, to render " one-half part of all the
grain of every kind, and of all hemp, flax, potatoes, apples, fruit, and
other produce of whatever kind that should be planted, raised, sown or
produced, on or out of the demised premises, within and during the terms,",
the landlord cannot, perhaps, distrain at all; he cannot, certainly,
distrain for a sum of money, although he and the tenant may afterwards have
settled their accounts, and agreed that the half of the produce of the land
should be fixed in money, for which the tenant gave his note, which was not
paid. 1 3 Serg. & Rawle, 5 2. But in another case it was held, that on a
demise of a grist mill, when the lessee is to render one-third of the toll,
the lessor may distrain for rent. 2 Rawle, 11.
4.-2. With respect to the amount of the rent, for which a lessor may
in different cases be entitled to make a distress, it may be laid down as a
general rule, that whatever can properly be considered as a part of the
rent, may be distrained for, whatever be the particular mode in which it is
agreed to be paid. So that where a person entered into possession of certain
premises, subject to the approbation of the landlord, which was afterwards
obtained, by agreeing to pay in advance, rent from the time be came into
possession, it was, in England, determined that the landlord might distrain
for the whole sum accrued before and after the agreement. Cowp. 784. For on
whatever day the tenant agrees that the rent shall be due, the law gives the
landlord the power of distraining for it at that time. 2 T. R. 600. But see
13 S. & R. 60. In New York, it was determined, that an agreement that the
rent should be paid in advance, is a personal covenant on which an action
lies, but not distress. 1 Johns. R. 384. The supreme court of Pennsylvania
declined deciding this point, as it was not necessarily before them. 13
Serg. & Rawle, 60. Interest due on rent cannot, in general, be distrained
for; 2 Binn. 146; but may be recovered from the tenant by action, unless
under particular circumstances. 6 Binn. 159.
5.-2. Of the persons entitled to make a distress. 1. When the
landlord is sole owner of the property out of which rent is payable to him,
he may, of course, distrain in his own right.
6.-2. Joint tenants have each of them an estate in every part of the
rent; each may, therefore, distrain alone for the whole, 3 Salk. 207,
although he must afterwards account with his companions for their respective
shares of the rent. 3 Salk. 17; 4 Bing. 562; 2 Brod. & B. 465; 5 Moore, 297
Y. B. 15 H. VIII, 17, a; 1 Chit. Pr. 270; 1 Tho. Co. Litt. 783, note R; Bac.
Ab. Account; 5 Taunt. 431; 2 Chit. R. 10; 3 Chit. Pl. 1297. But one joint
tenant cannot avow solely, because the avowry is always upon the right, and
the right of the rent is in all of them. Per Holt, 3 Salk. 207. They may all
join in making the distress, which is the better way.
7.-3. Tenants in common do not, like joint tenants, hold by one title
and by one right, but by different titles, and have several estates.
Therefore they should distrain separately, each for his share, Co. Lit. s.
317, unless the rent be of an entire thing, as to render a horse, in which
case, the thing being incapable of division, they must join. Co. Lit. 197,
a. Each tenant in common is entitled to receive, from the lessee, his
proportion of the rent; and therefore, when a person holding under two
tenants in common, paid the whole rent to one of them, after having received
a notice to the contrary from the other, it was held, that the party who
gave the notice might afterwards distrain. 5 T. R. 246. As tenants in common
have no original privity of estate between them, as to their respective
shares, one may lease his part of the land to the other, rendering rent, for
which a distress may be made, as if the land had been demised to a stranger.
Bro. Ab. tit. Distress, pl. 65.
8.-4. It may be, perhaps, laid down as a general rule, that for rent
due in right of the wife, the husband may distrain alone; 2 Saund. 195; even
if it accrue to her in the character of executrix or administratrix. Ld.
Raym. 369. With respect to the remedies for the recovery of the arrears of a
rent accruing in right of his wife, a distinction is made between rent due
for land, in which the wife has a chattel interest, and rent due in land, in
which she has an estate of freehold and inheritance. And in some cases, a
further distinction must be made between a rent accruing before and rent
accruing after the coverture. See, on this subject, Co. Lit. 46, b, 300, a;
351, a; 1 Roll. Abr. 350; stat; 32 Hen. VIII. c. 37, s. 3.
9.-5. A tenant by the curtesy, has an estate of freehold in the lands
of his wife, and in contemplation of law, a reversion on all land of the
wife leased for years or lives, and may distrain at common law for all rents
reserved thereon.
10.-6. A woman may be endowed of rent as well as of land; if a
husband, therefore, tenant in fee, make a lease for years, reserving rent,
and die, his widow shall be endowed of one-third part of the reversion by
metes and bounds, together with a third part of the rent. Co. Litt. 32, a.
The rent in this base is apportioned by the act of law, and therefore if a
widow be endowed of a third part of a rent in fee, she may distrain for a
third part thereof, and the heir shall distrain for the other part of the
rent. Bro. Abr. tit. Avowry, pl. 139.
11.-7. A tenant for his own life or that of another, has an estate of
freehold, and if he make a lease for years, reserving rent, he is entitled
to distrain upon the lessee. It may here be proper to remark, that at common
law, if a tenant for life made a lease for years, if be should so long live,
at a certain rent, payable quarterly, and died before the quarter day, the
tenant was discharged of that quarter's rent by the act of God. 10 Rep. 128.
But the 11 Geo. II. c. 19, s. 15, gives an action to the executors or
administrators of such tenant for life.
12.-8. By the statute 32 Henry VIII. c. 37, s. 1, "the personal
representatives of tenants in fee, tail, or for life, of rent-service, rent-
charge, and rents-seek, and fee farms, may distrain for, arrears upon the
land charged with the payment, so long as the lands continue in seisin or
possession of the tenant in demesne, who ought to have paid the rent or fee
farm, or some person claiming under him by purchase, gift or descent." By
the words of the statute, the distress must be made on the lands while in
the possession of the "tenant in demesne," or some person claiming under
him, by purchase, gift or descent; and therefore it extends to the
possession of those persons only who claim under the tenant, and the statute
does not comprise the tenant in dower or by the curtesy, for they come in,
not under the party, but by act of law. 1 Leon. 302.
13.-9. The heir entitled to the reversion may distrain for rent in
arrear which becomes due after the ancestor's death; the rent does not
become due till the last minute of the natural day, and if the ancestor die
between sunset and midnight, the heir, and not the executor, shall have the
rent. 1 Saund. 287. And if rent be payable at either of two periods, at the
choice of the lessee, and the lessor die between them, the rent being
unpaid, it will go to the heir. 10 Rep. 128, b.
14.-10. Devisees, like heirs, may distrain in respect of their
reversionary estate; for by a devise of the reversion the rent will pass
with its incidents. 1 Ventr. 161.
15.-11. Trustees who have vested in them legal estates, as trustees of
a married woman, or assignees of an insolvent, may of course distrain in
respect of their legal estates, in the same manner as if they were
beneficially interested therein.
16.-12. Guardians may make leases of their wards' lands in their, own
names, which will be good during the minority of the ward. and,
consequently, in respect of such leases, they possess the same power of
distress as other persons granting leases in their own rights. Cro. Jac. 55,
98.
17.-13. Corporations aggregate should generally make and accept leases
or other conveyances of lands or rent, under their common seal. But if a
lease be made by an agent of the corporation, not under their common seal,
although it may be invalid as a lease, yet if the tenant hold under it, and
pay rent to the bailiff or agent of the corporation, that is sufficient to
constitute a tenancy at least from year to year, and to entitle the
corporation to distrain for rent. New Rep. 247. But see Corporation.
18.-3. Of the things which may or may not be distrained. Goods found
upon the premises demised to a tenant are generally liable to be distrained
by a landlord for rent, whether such goods in fact belong to the tenant or
other persons. Coin. Dig. Distress, B 1. Thus it has been held, that a
gentleman's chariot, which stood in a coach-house belonging to a common
livery stable keeper, was distrainable by the landlord for the rent due him
by the livery stable keeper for the coach-house. 3 Burr. 1498. So if cattle
are put on the tenant's land by consent of the owners of the beasts, they
are distrainable by the landlord immediately after for rent in arrear. 3 Bl.
Com. 8. But goods are sometimes privileged from distress, either absolutely
or conditionally.
19. First. Those of the first class are privileged, 1. In respect of the
owner of 2. Because no one can have property in them. 3. Because they cannot
be restored to the owner in the same plight as when taken. 4. Because they
are fixed to the freehold. 5. Because it is against the policy of law that
they should be distrained. 6. Because they are in the custody of the law. 7.
Because they are protected by some special act of the legislature.
20.-1. The goods of a person who has some interest, in the land
jointly with the distrainer, as those of a joint tenant, although found upon
the land, cannot be distrained. The goods of executors and administrators,
or of the assignee of an insolvent regularly discharged according to law,
cannot, in Pennsylvania, be distrained for more than one year's rent. 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 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.
Willes, 131. And they are equally protected in the hands of a vendee. Ibid.
They cannot be distrained, although the purchaser allow them to remain uncut
an unreasonable time after the are ripe. 2 B. & B. 862; 5 Moore, 97, S. C.
21.-2. As every thing which is distrained is presumed to be the
property of the tenant, it will follow that things wherein no man can have
an absolute and valuable property, as cats, dogs, rabbits, and all animals
ferae naturae, cannot be distrained. Yet, if deer, which are of a wild
nature, are kept in a private enclosure, 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. 3 B1. Com. 7.
22.-3. Such things as cannot be restored to the owner in the same
plight as when they were taken, as milk, fruit, and the like, cannot be
distrained. 3 Bl. Com. 9.
23.-4. 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. Co. Litt. 47, b. And this rule extends.
to such things as are essentially a part of the freehold, although for a
time removed therefrom, as a millstone removed to be picked; for this is
matter of necessity, and it still remains in contemplation of law, a part of
the freehold. For the same reason an anvil fixed in a smith's shop cannot be
distrained. Bro. Abr. Distress, pl. 23; 4 T. R. 567; Willis, Rep. 512 6
Price's R. 3; 2 Chitty's R. 167.
24.-5. Goods are privileged in cases where the proprietor is either
compelled, from necessity to place his goods upon the land, or where be does
so for commercial purposes. 17 S. & R. 139; 7 W. & S. 302; 8 W. & S. 302; 4
Halst. 110; 1 Bay, 102, 170; 2 McCord, 39; 3 B. & B. 75; 6 J. B. Moore, 243;
1 Bing. 283; 8 J. B. Moore, 254; 2 C. & P. 353; 1 Cr. M. 380. In the first
case, the goods are exempt, because the owner has no option; hence the goods
of a traveller in an inn are exempt from distress. 7 H. 7, M. 1, p. 1.;
Hamm. N. 380, a.; 2 Keny. 439; Barnes, 472; 1 Bl. R. 483; 3 Burr. 1408. In
the other, the interests of the community require that commerce should be
encouraged, and adventurers will not engage in speculations, if the property
embarked is to be made liable for the payment of debts they never
contracted. Hence goods landed at a wharf, or deposited in a warehouse on
storage, cannot be distrained. 17 Serg. & Rawle, 138; 6 Whart. R. 9, 14; 9
Shepl. 47; 23 Wend. 462. 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 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 privileged and protected for the
benefit of trade. 3 Bl. Com. 8. On the same principle it has been decided,
that the goods of a boarder are not liable to be distrained for rent due by
the keeper of a boarding house; 5 Whart. R. 9; unless used by the tenant
with the boarder's consent, and without that of the landlord: 1 Hill , 565.
25.-6. Goods taken in execution cannot be distrained. The law in some
states gives the landlord the right to claim payment out of the proceeds of
an execution for rent, not exceeding one year, and he is entitled to payment
up to the day of seizure, though it be in the middle of a quarter 2 Yeates,
274; 5 Binn. 505; but he is not entitled to the day of sale. 5 Binn. 505.
See 18 Johns. R. 1. The usual practice is, to give notice to the, sheriff
that there is a certain sum due to the landlord as arrears of rent; which
notice ought to be given to the sheriff, or person who takes the goods in
execution upon the premises for the sheriff is, not bound to find out
whether rent is due, nor is he liable to an action, unless there has been a
demand of rent before the removal. 1 Str. 97, 214; 3 Taunt. 400 2 Wils. 140;
Com. Dig. Rent, D 8; 11 Johns. R. 185. This notice can be given by the
immediate landlord only a ground landlord is not entitled to his rent out of
the goods of the under tenant taken in execution. 2 Str. 787. And where
there are two executions, the landlord is not entitled to a year's rent on
each. See Str. 1024. Goods distrained and replevied may be distrained by
another landlord for subsequent rent. 2 Dall. 68.
26.-7. By some special acts of the legislature it is provided that tools
of a man's trade, some designated household furniture, school books, and the
like, shall be exempted from distress, execution, or sale. And by a recent
Act of Assembly of Pennsylvania, April 9, 1849, property to the value of
three hundred dollars, exclusive of all wearing apparel of the defendant and
his family, and all bibles and school books in use in the family, are
exempted from levy and sale on execution, or by distress for rent.
27.-Secondly. Besides the above mentioned goods and chattels, which
are absolutely privileged from distress, there are others which are
conditionally so, but which may be distrained under certain circumstances.
These are, 1. Beasts of the plough, which are exempt if there be a
sufficient distress besides on the land whence the rent issues. Co. Litt.
47, a; Bac. Abr. Distress, B. 2. Implements of trade; as, a loom in actual
use; and there is a sufficient distress besides. 4 T. R. 565. 3. Other
things in actual use,; as, a horse whereon a person is riding, an axe in the
hands of. a person cutting wood, and the like. Co. Litt. 4 7, a.
28.-4. The time when a distress may be made. 1. The distress cannot be
made till the rent is due by the terms of the lease; as rent is not due
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. 1 Saund. 287; Co. Litt.
47, b. n. 6. A previous demand is not generally necessary, although there be
a clause in the lease, that the lessor may distrain for rent," being
lawfully demanded Bradb. 124; Bac. Abr. Rent, 1; the making of the distress
being a demand though it is advisable to make such 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 special
demand is necessary to support the distress. Plowd. 69 Bac. Abr. Rent, I.
29.-2 A distress for rent can only be made during the day time. Co.
Litt. 142, a.
30.-3. At common law a distress could not be made after the expiration
of the lease to remedy this evil the legislature of Pennsylvania passed an
act making it "lawful for any person having any rent in arrear or due upon
any lease for life or years or at will, ended or determined, to distrain for
such arrears after the determination of the said respective leases, in the
same manner as they might have done, if such lease had not been ended:
provided, that such distress be made during the continuance of such lessor's
title or interest.", Act of March 21, 1772, s. 14, 1 Smith's Laws of Penna.
375. 4. In the city and county of Philadelphia, the landlord may, under
certain circumstances, apportion his rent, and distrain before it becomes
due. See act of March 25, 1825, s. 1, Pamph. L. 114.
31.-5. In what place a distress may be made. The distress may be made
upon the land, or off the land. 1. Upon the land. A distress generally
follows the rent, and is consequently confined to the land out of which it
issues. If two pieces of land, therefore, are let by two separate demises,
although both be contained in one lease, a joint distress cannot be made for
them, for this would be to make the rent of one issue out of the other. Rep.
Temp. Hardw. 245; S. C. Str. 1040. But where lands lying in different
counties are let together by one demise, at one entire rent, and it does not
appear that the lands are separate from each other, one distress may be made
for the whole rent. Ld. Raym. 55; S. C. 12 Mod. 76. And, where rent is
charged upon land, which is afterwards held by several tenants, the grantee
or landlord may distrain for the whole upon the land of any of them; because
the whole rent is deemed to issue out of every part of the land. Roll. Abr.
671. If there be a house on the land, the distress may be made in the house;
if the outer door or window be open, a distress may be taken out of it.
Roll. Abr. 671. And if an outer door be open, an inner door may be broken
open for the purpose of taking a distress. Comb. 47; Cas. Temp. Hard. 168.
Barges on a river, attached to the leased premises (a wharf) by ropes,
cannot be distrained. 6 Bingh. 150; 19 Eng. Com. Law R. 36.
32.-2. Off the land. By the 5th and 6th sections of the Pennsylvania
act of assembly of March 21, 1772, copied from the 11 Geo. II. c. 19, it is
enacted, that if any tenant for life, years, at will, or otherwise, shall
fraudulently or clandestinely convey his goods off the premises to prevent
the landlord from distraining the same, such person, or any person by him
lawfully authorized, may, within thirty days after such conveyance, seize
the same, wherever they shall be found, and dispose of them in such manner
as if they had been distrained on the premises. Provided, that the landlord
shall not distrain any goods which shall have been previously sold, bona
fide, and for a valuable consideration, to one not privy to the fraud. To
bring a case within the act, the removal must take place after the rent
becomes due, and must be secret, not made in open day, for such removal
cannot be said to be clandestine within the meaning of the act. 3 Esp. N. P.
C. 15; 12 Serg. & Rawle, 217; 7 Bing. 422; 1 Moody & Malkin, 585. It has
however been made a question, whether goods are protected that were
fraudulently removed on the night before the rent had become due. 4 Camp.
135. The goods of a stranger cannot be pursued; they can be distrained only
while they are, on the premises. 1 Dall. 440.
33.-6. Of the manner of making a distress. 1. A distress for rent may
be made either by the person to whom it is due, or, which is the preferable
mode, by a constable, or bailiff, or other officer properly authorized by
him.
34.-2. If the distress be made by a constable, it is necessary that he
should be properly authorized to make it; for which purpose the landlord
should give him a written authority, or; as it is usually called, a warrant
of distress; but a subsequent assent and recognition given by the party for
whose use the distress has been made, is sufficient. Hamm. N. P. 382.
35.-3. When the constable is thus provided with the requisite
authority to make a distress, he, may distrain by seizing the tenant's
goods, or some of them in the name of the whole, and declaring that he takes
them as a distress for the sum expressed in the warrant to be due by the
tenant to the landlord, and that he takes them by virtue of the said
warrant; which warrant he ought, if required, to show. 1 Leon. 50.
36.-4. When making the distress it ought to be made for the whole
rent; but if goods cannot be found at the time, sufficient to satisfy the
rent, or the party mistake the value of the thing distrained, he may make a
second distress. Bradb. 129, 30; 2 Tr. & H. Pr. 155; supra 1.
37.-5. As soon as a distress is made, an inventory of the goods
distrained should be made, and a copy of it delivered to the tenant,
together with a notice of taking such distress, with the cause for taking
the same. This notice of taking a distress is not required by the statute to
be in writing; and, therefore, parol or verbal notice may be given either to
the tenant on the premises, or to the owner of the goods distrained. 12 Mod.
76. And although notice is directed by the act to specify the cause of
taking, it is not material whether it accurately state the period of the
rent's becoming due; Dougl. 279; or even whether the true cause of taking
the goods be expressed therein. 7 T. R. 654. If the notice be not personally
given, it should be left in writing at the tenant's house, or according to
the directions of the act, at the mansion-house or other most notorious
place on the premises charged with the rent distrained for.
38.-6. The distrainor may leave or impound the distress on the
premises for the five days mentioned in the act, but becomes a trespasser
after that time. 2 Dall. 69. As in many cases it is desirable for the sake
of the tenant that the goods should not be sold as soon as the law permits,
it is usual for him to sign an agreement or consent to their remaining on
the premises for a longer time, in the custody of the distrainor, or of a
person by him appointed for that purpose. While in his possession, the
distrainor cannot use or work cattle distrained, unless it be for the
owner's benefit, as to milk a cow, or the like. 5 Dane's Abr. 34.
39.-7. Before the goods are sold they must be appraised by two
reputable free-holders, who shall take an oath or affirmation to be
administered by the sheriff, under-sheriff, or coroner, in the words
mentioned in the act.
40.-8. The next requisite is to give six days public notice of the
time and place of sale of the things distrained; after which, if they have
not been replevied, they may be sold by the proper officer, who may apply
the proceeds to the payment and satisfaction of the rent, and the expenses
of the distress, appraisement and sale. The over-plus, if any, is to be paid
to the tenant.
41.-7. When a distress will be a waiver of a forfeiture of the lease.
On this subject, see 1 B. & Adol. 428. The right of distress, it seems, does
not exist in the New England states. 4 Dane's Ab. 126; 7 Pick. R. 105; 3
Griff. Reg 404; 4 Griff. Reg. 1143; Aik. Dig. 357, nor in Alabama,
Mississippi, North Carolina, nor Ohio; and in Kentucky, the right is limited
to a distress for a pecuniary rent. 1 Hill. Ab. 156. Vide, generally, Bouv.
Inst. Index, h . t.; Gilb. on Distr. by Hunt; Bradb. on Distr.; Com. Dig.
h.t.; Bac. Ab. h.t.; Vin. Ab. h.t.; 2 Saund. Index, h.t.; Wilk. on Repl.; 3
Chit. Bl. Com. 6, note; Crabb on R. P. Sec. 222 to 250.

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