The right to distrain damage-feasant is given to all persons who have an imme diate possessory interest in the soil or in its produce, and whose rights are therefore invaded by such wrongful intrusion. Thus, not only the occupier of the land trespassed upon, hut other persons enti tled to share in the present use of the land or of the produce, as commoners, &c., may distrain. But though a commoner may always distrain cattle, &c. of a stranger found upon the common, it would seem that he cannot, unless authorized by a special custom, distrain the cattle, &c. of the person who has the actual possession of the soil. Nor can he distrain the cattle of another commoner who has stocked beyond his proportion, unless the common be stinted, i. e. unless the proportion be limited to a certain number. In the more ordinary case of rights of common in respect of all the cattle which the com moner's enclosed land can support during the winter, cattle exceeding the propor tion cannot be distrained.
Cattle found trespassing may be dis trained damage-feasant, although they have come upon the land without the knowledge of their owner and even through the wrongful act of a stranger. But if they are there by the default of the occupier of the land, as by his neglecting to repair his fences, or to shut his gates against a road or a close in which the eattle lawfully were, such negligent oc cupier cannot distrain unless the owner of the cattle suffer them to remain on the land after notice and time given to him to remove them ; and if cattle trespass on one day and go off before they are dis trained, and are taken trespassing on the same land on another day, they can be detained only for the damage done upon the second day.
Cattle, if once off the land upon which they have trespassed, though driven off for the purpose of eluding a distress, can not be taken even upon immediate pur suit. The occupier must get satisfaction for the damage by action.
Things necessary for the carrying on of trade, as tools and utensils, —or for the maintenance of tillage, as implements of husbandry, beasts of the plough, and sheep as requisite to manure the land, are privileged from Distress whilst other sufficient distress can be found. But this rule does not extend to a distress for a toll or duty arising in respect of the thing taken as a distress, or of things connected with it; as a distress of two sheep for market-toll claimed in respect of the whole flock, or of the anchor of a ship for port-duty due in respect of such ship.
For the protection of tradesmen and their employers, property of which the distrainee has obtained the possession with a view to some service to be per formed upon it by him in the way of his trade, is absolutely privileged from dis tress; as a horse standing in a smith's shop to be shod, or put up at an inn, or cloth sent to a tailor's shop to be made into clothes, or corn sent to a mill or mar ket to be ground or sold. The goods of a guest at an inn are privileged from distress ; but this exemption does not ex tend to the case of a chariot standing in the coach-house of a livery-stable keeper ; nor does it protect goods on other pre. raises belonging to the inn but at a dis tance from it; and even within the inn itself the exemption does not extend to the goods of a person dwelling there as a tenant rather than a guest. Goods in the hands of a factor for sale are privileged from distress ; and also goods consigned for sale, landed at a wharf, and placed in the wharfinger's warehouse.
Beasts of the plough may be distrained where no other distress can be found ; and it is sufficient if the distrainor use diligence to find some other distress. A distress is not said to be found unless it be accessible to the party entitled to dis train, by the doors of the house being open, or the gates of the fields unlocked. Beasts of the plough may be distrained upon where the only other sufficient distress consists of growing crops, which though now subjected to distress, are not, as they cannot be sold until ripe, immediately available to the landlord.
A temporary privilege from distress arises when the chattel is in actual use, as an axe with which a man is cutting wood, or a horse on which a man is riding. Implements in trade, as frames for knitting, weaving, &c., are absolutely privileged from distress whilst they are in actual use, otherwise they may be dis trained upon if no other sufficient distress can be found.
Rent is not due until the last moment of the day on which it is made payable. No distress therefore can be taken for it until the following day.
A distress for rent or other duties or services can be taken only between sun rise and sunset; but cattle or goods found damage-feasant may be distrained at any time of the day or night.
No distress can be taken for more than six years' arrears of rent ; nor can any rent be claimed where non-payment has been acquiesced in for twenty years (3 and 4 Wm. IV. c. 27).