A distress for rent or other service could at common law be taken only upon the land charged therewith, and out of which such rent or services were said to issue.
But this restriction did not apply to the king, who might distrain upon any lands which were in the actual occupation f his tenant, either at the time of the dis tress or when the rent became due.
The assumption of a similar power by other lords was considered oppressive, and it was ordained by the statute of Marlbridge, that no one should make dis tress for any cause out of his fee, except the king and his ministers thereunto spe cially authorized. The privilege of dis training in all lands occupied by the party chargeable, is communicated by 22 Car. II. c. 6; 26 Geo. III. c. 87; 30 Geo. HI. c. 50 ; and 34 Geo. III. c. 75, to the purchasers of certain crown rents.
Under 8 Ann. c. 14, and 11 Geo. II. c. 19, where a lessee fraudulently or clan destinely carries off his goods in order to prevent a distress, the landlord may within five days afterwards distrain them as if they had still continued on the de mised premises; provided they have not been (bona „fide) sold for a valuable con sideration.
And by the 7th section of the latter statute, where any goods fraudulently and clandestinely carried away by any tenant or lessee, or any person aiding therein, shall be put in any house or other place, locked up or otherwise secured, so as to prevent such goods from being distrained for rent, the landlord or his bailiff may, in the day time, with the assistance of the constable or peace officer (and in case of a dwelling-house, oath being also first made of a reasonable ground to suspect that such goods are therein), break open and enter into such house or place, and take such goods, for the arrears of rent, as he or they might have done if such goods had been put in an open field or place.
To entitle the landlord to follow the goods, the removal must have taken place after the rent became due, and for the purpose of eluding a distress. It is not however necessary that a distress should be in progress, or even contemplated : nor need the removal be clandestine. Although the s be removed openly, yet if goods su cient to satisfy the arrears are not left upon the premises, and the is turned over to the barren remedy by action, the removal is fraudu lent and the provisions of these statutes may be resorted to. These provisions apply to the goods of the terant only. The goods of a stranger or of an under tenant may be removed at any time be fore they are actually distrained upon, and cannot be followed.
The landlord may enter a house to dis train if the outer door be open, although there be other sufficient goods out of the house. It is not lawful to break open outer doors or ' gates • but if the outer door be open, an inner door may be forced.
If the landlord, having distrained, is forcibly expelled, be may break open outer doors or gates in order to retake the distress. If a window be open, a dis tress within reach may be taken out at it.
At common law a distress might be taken for rent in a street or other high way being within the land demised. But now, by the statute of Marlbridge, pri vate persons are forbidden to take dis tresses in the highway. This statute ap plies only to distresses for rent or for services, and not to toll. Nor does the
statute make the distress absolutely void ; for though the tenant may lawfully rescue cattle distrained in the highway, or may bring his action on the case upon the statute, yet if he brings trespass or replevin, it seems to be no answer to a justification or an avowry made in respect of the rent.
A distress may be made either by the party himself or his agent, and as dis tresses in manors were commonly made by the bailiff of the manor, any agent authorized to distrain is called a bailiff. The authority given to the bailiff is usually in writing, and is then called a warrant of distress ; but a verbal au thority, and even the subsequent adoption of the act by the party on whose behalf the distress is made, is sufficient. In order that the distrainee may know what is included in the distress, an inventory of the goods should be delivered, accom nied, in the case of a distress for rent, by a notice stating the object of the dis tress, and informing the tenant that unless the rent and charges be paid within five days, the goods and chattels will be sold according to law. This no tice is required by 2 W. & M. seas. i. c. 5, § 2, which enacts, "where any goods shall be distrained for rent due upon any demise, lease, or contract, and the tenant or owner of the goods shall not, within five days next after such distress taken, and notice thereof with the cause of such taking, left at the chief mansion house, or other most notorious place ou the pre mises, replevy the same, with sufficient security to be given to the sheriff,—that after such distress and notice and expira tion of the five days, the person dis training shall and may, with the sheriff or under-sheriff, or with the constable of the place, cause the goods to be appraised by two sworn appraisers, and after such appraisement may sell the goods dis trained towards satisfaction of the rent, and of the charges of distress, appraise ment, and sale, leaving any surplus in the hands of the sheriff; under-sheriff, or constable, for the owner's use." At common law, goods distrained were, within a reasonable time, to be removed to and confined in an enclosure called a pound, which is either a pound covert, i. e. a complete enclosure, or a pound overt, an enclosure sufficiently open to enable the owner to see, and if necessary, to feed the distress, the former being proper for goods easily removed or in jured, the latter for cattle ; and by 5 & 6 Will. IV. c. 59, § 4, persons impounding cattle or animals in a common open or close pound, or in enclosed ground, are to supply them with food, &c., the value of which they may recover from the owner. By 11 Geo. II. c. 19, § 10, goods distrained for any kind of rent may be impounded on any part of the tenant's ground, to remain there five days, at the expiration of which time they are to be sold, unless sooner replevied. The land lord is not however bound to remove the goods immediately after the expiration of the five days ; he is allowed a rea sonable time for selling. After the lapse of a reasonable time he is a trespasser if he retain the goods on the premises with out the express assent of the tenant, which assent is generally given in writing.